ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  25 April 2019

	DOCKET NUMBER:  AR20180000254


APPLICANT REQUESTS:  His 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 from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Records 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 13 January 1981
* Commonwealth of Virginia Marriage Register, dated 4 February 2009

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 is older and retired now and he would like to be able to go to the Department of Veterans Affairs (VA) and get the best from them along with all of his benefits.  He is married and has been for 10 years.  He has four kids, is a deacon in the church, and is sorry for his attitude and the way he was back when he was fresh out of high school, young, and unable to understand.  He is a good person and is well respected in is community.

3.  The applicant enlisted in the Regular Army 30 October 1979.  He completed training as a petroleum specialist.

4.  The applicant received nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses:

	a.  on 18 August 1980, for willfully disobeying a lawful order from a noncommissioned officer, on or about 29 July 1980.

	b.  on 23 September 1980, for being disrespectful in language towards a noncommissioned officer, on or about 14 September 1980.

	c.  on 21 October 1980, for having in his possession some amount of marijuana, on or about 10 October 1980.

5.  The applicant's immediate commander notified the applicant on 12 December 1980 that he intended to recommend him for elimination from military service under the provisions of Army Regulation 635-200 (Enlisted Personnel – Personnel Separations), Chapter 13, for unsuitability.  The commander cited the three records of NJP as basis for his recommendation and stated that all attempts to make him a useful Soldier had failed.  He was reminded that he had been given every opportunity to improve his conduct and/or duty performance and he had been counseled on numerous occasions to no avail.   He was reminded that all attempts toward rehabilitating him had met with negative results.

6.  The applicant consulted with counsel on 17 December 1980 and acknowledged receipt of the notification.  He was advised of the possible effects of a less the fully honorable discharge and the procedures and rights that were available to him.  He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  The applicant's immediate commander formally recommended the applicant's separation under the provisions of Army Regulation 635-200, Chapter 13, by reason of unsuitability.  The separation authority approved the applicant's discharge on 18 December 1980, under the provisions of Army Regulation 635-200, 
paragraph 13-4c, and directed the applicant be issued a General Discharge Certificate.  

8.  The applicant was discharged on 13 January 1981, under the provisions of Army Regulation 635-200, paragraph 13-4c (2), by reason of "unsuitability – apathy, defective attitude or inability to expend efforts constructively."  His DD Form 214 confirms his service was characterized as "Under Honorable Conditions." 

9.  Army Regulation 635-200, in affect at that time, set forth the policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of enlisted members for a variety of reasons.

10.  The Board should consider the applicant's statement 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 occasions of UCMJ violations and a lack of mitigating factors provided by the applicant, 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 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 states 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 states 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.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  It provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.

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)	 AR20180000254


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