ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 May 2019 DOCKET NUMBER: AR20170018809 APPLICANT REQUESTS: an upgrade of his general discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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, in effect: a. At the time of his discharge, he was serving on a hardship tour in Korea, leaving his wife to care for his twin girls who were born that October. All he wanted to do was get home and save his marriage. Thirty three years later, he and his wife are still married. b. Since his discharge, he has led a trouble free, exemplary life. c. He acknowledges the mistake that he made that led to his discharge. He would like for his discharge to be characterized as honorable when he dies. 3. Review of the applicant's service records show: a. He enlisted in the Army on 9 March 1982. b. He accepted nonjudicial punishment (NJP) on 2 June 1983, for knowingly and wrongfully use some amount of marijuana between about 3 April 1983 and 2 May 1983. He was reduced to private/E-2. a. c. He accepted NJP on 26 July 1984, for wrongfully having in his possession an amount unknown of marijuana on 21 June 1984. He was reduced to private first class/E-3. d. He accepted NJP on 29 October 1984, for resisting being apprehended by military police and for being drunk and disorderly on 21 October 1984. He was reduced to private/E-1. e. On 16 November 1984, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of paragraph 13-2 of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel) for unsatisfactory performance. f. The applicant acknowledged receipt of the commander's intent to separate him on 16 November 1984. He consulted with legal counsel who advised him of the basis for the contemplated separation action for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. He elected to submit a statement in his own behalf. He acknowledged he: * understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions * understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded g. In his statement, the applicant requested his separation be characterized as honorable. He acknowledged his military records show otherwise. Further stating that he tried to show he could Soldier on, and despite failing, he was sincerely thankful for all the commander had done for him. Now, he was on his way home to his wife and kids, who he has been apart from for one year. His actions hurt his family and now with his sudden departure, his family will be placed in a financially bad situation. With an honorable discharge, there is a good chance he will be able to get a job quickly. h. On 26 November 1984, the separation authority approved the applicant's discharge under the provisions of AR 635-200, paragraph 13-2 for unsatisfactory performance, with his service characterized as general under honorable conditions. The applicant was discharged accordingly on 5 December 1984. i. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged for unsatisfactory performance, Separation Code JHJ, under the a. provisions of AR 635-200, paragraph 13, with his service characterized as general under honorable conditions. He completed 2 years, 8 months, and 27 days of active service. 4. By regulation (AR 635-200), chapter 13 action will be taken to separate a member due to unsatisfactory performance when in the commander’s judgment, the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future. 5. 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 relatively short term of service completed prior to a pattern of misconduct beginning, the Board concluded that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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. 1535874 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 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 13 of this regulation provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be 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 1. 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.