ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 January 2020 DOCKET NUMBER: AR20170013805 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 14 August 2017 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 6 April 1990 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he never failed a PT test [Army Physical Fitness Test (APFT)], or received an Article 15 [nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ)]. 3. The applicant enlisted in the Regular Army on 11 May 1989. 4. The applicant received a DA Form 4856 (General Counseling Form) on 26 October 1989 for being drunk, disorderly and inflicting personal injury. The incident was due to him indicating he was a devil worshipper and needed blood. He was advised the counseling was not a punitive measure but an administrative measure to stress that continued behavior of a similar nature could result in the initiation of administrative actions to eliminate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapters 13 (unsatisfactory performance) or 14 (misconduct). 5. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, for failing to be at his appointed place of duty, on or about 22 January and 23 January 1 1990; and for lying to a noncommissioned officer, his first sergeant (1SG), on or about 23 January 1990. 6. The applicant’s 1SG counseled him on 16 February 1990, based on his recommendation for a Chapter 13 separation for unsatisfactory performance. 7. The applicant underwent a command directed separation physical on 1 February 1990. The Standard Form (SF) 88 (Report of Medical Examination) shows he was qualified for separation under chapter proceedings. The SF 93 (Report of Medical History) shows he was in good health. A DA Form 3822-R (Report of Mental Status Evaluation) shows he had the mental capacity to understand and participate in the proceedings; was mentally responsible; and he met medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3. 8. The applicant’s commander notified him on 15 March 1990 that she was initiating actions to discharge him under the provisions of Army Regulation 635-200, Chapter 13, by reason of unsatisfactory performance prior to the expiration of his term of service. His commander stated her proposed actions were based on the applicant lying to a senior NCO, drunk and disorderly conduct, and failure to repair. His commander informed him that she would recommend he receive a general discharge. The applicant acknowledged the commanders intent the same day. 9. The applicant subsequently acknowledged the opportunity to consult with counsel on 15 March 1990, he declined the opportunity and waived counsel. He was advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance. He was further advised of his right to: * submit statements in his own behalf [he did not make any statements] * obtain documents to be presented to the separation authority * waive any of these rights * withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge 10. The applicant's commander formally recommended his separation from service under the provisions of Army Regulation 635-200, Chapter 13. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 16 March 1990, by reason of unsatisfactory performance, and directed he be issued a DD Form 257A (General Discharge Certificate), and that his service be characterized as general, under honorable conditions. 11. The applicant was discharged on 6 April 1990. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, Chapter 13, by reason of unsatisfactory performance, and confirms his service was characterized as under honorable conditions (general). 12. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the separation notification and the reason for his discharge. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 23 August 2020 X CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 13, as then in effect, provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debits, failure to support dependents and homosexual acts. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS//