ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 April 2019 DOCKET NUMBER: AR20180000188 APPLICANT REQUESTS: His under honorable conditions (General) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 18 August 1986 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 was advised that a year after being discharged, he could request an upgrade since he was discharged for a minor reason. He was sent to gunnery [qualification testing], where his tank crew scored a perfect score. When he was discharged, he and his company commander had a personality clash. The commander was already separating him, due to a confrontation he had had with another Soldier, so he was denied the award for the perfect score and was separated with a less than honorable separation. He believes he was issued bad papers. 3. The applicant enlisted in the Regular Army on 2 March 1982 and reenlisted on 4 March 1986. 4. The applicant accepted nonjudicial punishment (NJP) on 16 May 1986, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully using some form of marijuana between on or about 4 April 1986 and on or about 14 April 1986. 5. The applicant’s service contains a DA Form 3997 (Military Police Desk Blotter), dated 26 May 1986, which shows he was arrested for assaulting another Soldier and having alcohol on his breath while on duty. He was escorted to the medical aid station and was administered a legal blood alcohol test. His blood alcohol concentration level was 0.6 percent (%). 6. The applicant accepted NJP on 5 June 1986, under the provisions of Article 15 of the UCMJ, for wrongfully striking another Soldier in the face with his fist and being drunk on duty, on or about 26 May 1986. 7. The applicant's commander notified the applicant on 26 June 1986 that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-2, by reason of unsatisfactory performance prior to the expiration of his term of service. His commander stated his proposed actions were based on the applicant presenting himself as a disciplinary problem, having been counseled on numerous occasions for lack of self-discipline and failure to follow instructions and being punished under Article 15, UCMJ, on two occasions for assault and for use of some form of marihuana. His commander informed him that he would recommend he receive a general discharge. 8. The applicant consulted with counsel on 27 June 1986 and acknowledged he was advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, paragraph 13-2, for misconduct. He was further advised of his right to: * be represented by counsel [he waived his right to further counsel] * submit statements in his own behalf, [he did not make any statements on his own behalf] * 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 directed or approved his discharge 9. The applicant's commander recommended that he be separated from the Army prior to the expiration of his term of service, under the provisions of Army Regulation 635-200, paragraph 13-2, by reason of unsatisfactory performance based on the applicant's poor attitude, receipt of two Article 15s, lack of discipline, and numerous counseling statements for consistently failing to follow instructions. 10. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 27 June 1986, by reason of unsatisfactory performance, and directed that his service be characterized as general, under honorable conditions. 11. The applicant was discharged on 18 August 1986. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, Chapter 13, by reason of unsatisfactory performance. His DD Form 214 confirms his service was characterized as under honorable conditions. 12. The Board should consider the applicant's request 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 partial relief was warranted. Based upon the circumstances surrounding the discharge, the Board concluded that the characterization of service received at the time of service was appropriate. However, the Board did not the administrative note below from the analyst of record and recommended that change be made to more accurately depict his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 2 March 1982 UNTIL 3 March 1986.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge under other than honorable conditions. 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): A review of the applicant's record shows his DD Form 214, for the period ending 18 August 1986, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 820302 UNTIL 860303 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, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. b. Chapter 13 provided for separation of individuals due to unsatisfactory performance when, in the commander's judgment: * the individual would not become a satisfactory Soldier * retention would have an adverse impact on military discipline, good order, and morale * the service member would be a disruptive influence in the future * the basis for separation would continue or recur * the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely c. Service of Soldiers separated because of unsatisfactory performance was characterized as honorable or under honorable conditions. 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. ABCMR Record of Proceedings (cont) AR20180000188 4 1