ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 June 2019 DOCKET NUMBER: AR20170016264 APPLICANT REQUESTS: an upgrade to his under honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 the older he gets, the more he has felt injustice was brought against him. He was discharged because he could not type and he believes he should have been given a chance in another military occupational specialty (MOS). He did sincerely try his best; however, he was discharged for unsuitability, but he did served honorably and he would like the record to show that he did. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 4 February 1980. b. On 10 June 1981, he was convicted by a special court-martial of one specification of unlawfully striking and grabbing around the neck of another Soldier and one specification of being drunk at the station. The court found him guilty and sentenced him to reduction to the lowest enlisted grade of private/E-1, forfeiture of $304.00 pay per month for two months, and confinement at hard labor for 60 days. c. On 24 July 1981, his record shows he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to obey a lawful order. d. The applicant's immediate commander notified him on or about 12 November 1981 of his intent to initiate elimination action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsuitability. 4. The applicant acknowledged receipt of the proposed separation action consulted with legal counsel on 12 November 1981. He acknowledged the fact that he had been counseled regarding the basis for the contemplated separation, its effect, and the rights available to him. He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him. He elected to submit a statement on his own behalf. His statement revealed he considered his misconduct and counselling to be minor in nature, and while he did not desire to remain on active duty, he felt his duty performance was superior. 5. His immediate commander recommended discharge against him on 10 November 1981, under the provisions of Army Regulation 635-200, paragraph 13-4c for apathy, defective attitude or inability to expend effort constructively. 6. The intermediate commander recommended he be discharged on 30 November 1981, under the provisions of Army Regulation 635-200, chapter 13, for unsuitability. 7. The separation authority approved the applicant's discharge on 2 December 1981, under the provisions of Army Regulation 635-200, chapter 13-4 (c), by reason of unsuitability, and directed his service be characterized as under honorable conditions (general). 8. The applicant was discharged from the Army on 7 December 1981 in the rank/grade of PV1/E-1. 9. Army Regulation 635-5 (Separation Documents), in effect at the time, provided instructions for separation documents which are prepared for individuals upon retirement, discharge, or release from active military service. It establishes standardized policy for preparing and distributing the DD Form 214. The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a clear-cut record of active duty service at the time of release from active duty, retirement, or discharge 10. In reaching its determination, the Board can consider the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the misconduct which led to the applicant’s separation involving serious violent behaviors towards others, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 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. 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 Army Board for Correction of Military Records (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 requirements and procedures for administrative discharge 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. Chapter 13 of the regulation in effect at the time provided for separation due to inaptitude, personality disorder, apathy, and homosexuality (tendencies, desires, or interest but without overt homosexual acts). The regulation required that separation action would be taken when, in the commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier. Service of Soldiers separated because of unsuitability under this regulation was characterized as honorable or under honorable conditions. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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 based on equity, injustice, or clemency grounds, BCM/NRs 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. 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. ABCMR Record of Proceedings (cont) AR20170016264 3 1