ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20170018867 APPLICANT REQUESTS: an upgrade of his discharge from under honorable conditions (general) 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 he was told by his Human Resources that he could receive an honorable character of service after 6 months of discharge. 3. A review of the applicant's service record shows the following: a. The applicant enlisted in the Regular Army on 16 November 1983. b. He held the military occupational specialty 63B (Power Generation and Light Wheel Vehicle Mechanic), assigned to 163rd Military Intelligence Battalion at Fort Hood, TX. He attained the rank/grade of private first class/E-3. c. He was enrolled into the Army Drug and Alcohol Control Program on 12 July 1984. d. He accepted summarized nonjudicial punishment (NJP) on 7 January 1985 for failing to go to the appointed place of duty at the prescribed time on 19 December 1984. His punishment included 7 days extra duty and 14 days restriction. e. He accepted NJP on 15 April 1985 for wrongfully using marijuana. His punishment included reduction to private/E-2, 14 days restriction and extra duty, and forfeiture of pay for 7 days. f. On 22 April 1985, the applicant's immediate commander notified him of his intent to initiate separation proceedings against him under the provisions of Army Regulations (AR) 635-200 (Enlisted Personnel Separations), paragraph 13-2, for unsatisfactory performance because he tested positive for marijuana, failed to report to duty, and wrote dishonored checks. The commander advised him of his rights to counsel, and provided him an opportunity to submit statements on his behalf. g. The applicant signed the acknowledgement of notification, waived his rights to counsel, and waived the consideration of his case by an administrative separation board on 22 April 1985. He did not provide a statement on his behalf. h. His immediate commander initiated a bar to reenlistment on 22 April 1985, citing the Uniform of Military Justice violations outlined in the summary NJP, dated 7 January 1985, and the NJP, dated 15 April 1985. i. On 22 April 1985, the applicant was recommended for separation by his subsequent commanders. The separation authority approved his separation on 7 May 1985 and directed the applicant to receive a general under honorable conditions character of service. j. The applicant was discharged on 16 May 1985, under the provisions of AR 635-200, paragraph 13-2, due to unsatisfactory performance. His DD Form 214 shows he completed 1 year 6 months and 1 day of active service and was given a under honorable conditions (general) discharge.. It also shows he was awarded or authorized: * Army Service Ribbon * Expert Marksmanship Badge with Rifle Bar * Expert Marksmanship Badge with Grenade Bar 4. By regulation, AR 635-200, Soldiers are subject to separation under the provisions of chapter 13, when he or she is unqualified for further military service because of unsatisfactory performance. An honorable or under honorable conditions (general) discharge was an appropriate and authorized characterization of service. 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 multiple UCMJ offenses and a lack of character evidence provided by the applicant to show that he has learned and grown from the events leading to the discharge, 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, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier's service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b provides that 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. Paragraph 13-2, of the version in effect at the time, established policy and prescribed procedures for separating members for unsatisfactory participation. Commanders will separate a Soldier for unsatisfactory performance when it is clearly established that: * In their judgement, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier * The seriousness of the circumstances is such that the Soldier's retention would have an adverse impact on military discipline, good order, and morale * It is likely that the Soldier will be a disruptive influence in present or future duty assignments * It is likely that the circumstances forming the basis for initiation of separation proceedings will continue or recur * The ability of the Soldier to perform duties effectively in the future, including potential for advancement or leadership, is unlikely 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 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 government acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for the 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 has the upgraded service characterization. ABCMR Record of Proceedings (cont) AR20170018867 4 1