ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	

	BOARD DATE:  9 April 2019

	DOCKET NUMBER:  AR20180001243


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 October 1982

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 young when he entered the service and it was not what 
he envisioned.  He made mistakes that cost him his military career and he has paid for 
his mistakes for 35 years.  His discharge has affected his eligibility for benefits and 
services and he feels he has paid long enough. 

3.  The applicant enlisted in the Regular Army on 12 June 1979.  

4.  The applicant accepted nonjudicial punishment (NJP), under the provisions of  
Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: 

*	on 9 December 1980, for operating a privately owned vehicle (POV) without an 
operator’s license in Germany, and 1 specification of failing to comply with 
German traffic laws and regulations, on or about 9 November 1980
*	on 24 January 1981, for being derelict in his duty by failing to remain awake while 
performing Charge of Quarters (CQ) duties, on or about 6 December 1980
*	on 17 April 1981, for operating an unregistered POV in Germany, operating a 
POV in Germany without an operator’s license, and disobeying a lawful order 
from his superior commissioned officer, on or about 23 March 1981

5.  Court-martial charges were preferred against the applicant on 3 August 1981, for 
violations of the UCMJ while stationed in Germany.  The DD Form 458 (Charge Sheet) 
was not available for review but the applicant was charged with:

*	operating a POV without an operator’s license in Germany, on or about 10 May 
1981
*	being the driver of a vehicle at the time of an accident in which said vehicle was 
involved, and wrongfully and unlawfully leaving the scene in Germany, on or 
about 10 May 1981
*	wrongfully have in his possession 3 grams, more or less, of marijuana
  
6.  Before a special court-martial on 3 August 1981, at Aschaffenburg, Germany, the 
applicant was convicted of all counts except the wrongful possession charge.  His 
sentence included his forfeiture of $334.00 pay per month for two months and his 
confinement at hard labor for 60 days.  

7.  The applicant was reassigned to the U.S. Army Retraining Brigade, Fort Riley, KS. 
Upon completion of his confinement, he was reassigned on or about 19 October 1981 to 
Fort Polk, LA.  

8.  The applicant accepted NJP on 9 August 1982, under the provisions of Article 15 of 
the UCMJ, for failing to be at his appointed place of duty, the School of Soldiers, on or 
about 7 August 1982.

9.  The applicant's commander notified the applicant on 21 September 1982 that he was 
initiating actions to separate him under the provisions of Army Regulation 635-200 
(Personnel Separations – Enlisted Personnel), chapter 13, by reason of unsuitability  
and proposed separation prior to the expiration of his term of service.  The commander 
stated the applicant was unsuitable because "he cannot discipline himself either on or 
off duty.  He has frequently failed to report and has an established pattern of off duty 
misbehavior."  He also noted a lack of apathy, defective attitudes, or inability to expend 
efforts constructively.  His commander informed him that he would recommend he 
receive a general discharge.

10.  The applicant consulted with counsel on 27 September 1982 and was advised of 
the basis for the contemplated action to separate him under the provisions of Army 
Regulation 635-200, chapter 13, for unsuitability.  He was further advised of his right to:  

*	be represented by counsel
*	submit statements in his own behalf, [he did not make any statements in 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 
directs or approves his discharge 

11.  The applicant's immediate 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, by reason of unsuitability and his lack of discipline 
on or off duty, his frequent failure to report, and his established pattern of off duty 
misbehavior.

12.  Consistent with the chain of command recommendations, the separation authority 
approved the applicant's discharge for unsuitability and directed that his service be 
characterized as general, under honorable conditions.

13.  The applicant was discharged on 28 October 1982.  His DD Form 214 shows he 
was discharged under the provisions of Army Regulation 635-200, chapter 13, by 
reason of unsuitability – apathy, defective attitudes.  His DD Form 214 confirms his 
service was characterized as under honorable conditions (general).  

14.  The Board should consider the applicant's request in accordance with the published 
equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The board applied Office of the Secretary of 
Defense standards of liberal consideration and clemency to the complete evidentiary 
record, including the applicant’s statement and did not find any evidence of error, 
injustice, or inequity; the applicant had limited creditable service, no wartime service 
and no mitigating circumstances for the misconduct. The Board agreed that the 
applicant’s discharge characterization is appropriate for the misconduct.




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.

ADMINISTRATIVE NOTE(S):  N/A

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 basic authority for the administrative 
separation of enlisted personnel.  

   a.  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, in effect at the time, set forth the policy and prescribed procedures for 
discharging enlisted personnel for unsuitability.  Action was to be taken to discharge an 
individual for unsuitability when, in the commander's opinion, it was clearly established 
that:  the individual was unlikely to develop sufficiently to participate in further military 
training and/or become a satisfactory Soldier or the individual's psychiatric or physical 
condition was such as to not warrant discharge for disability.  Unsuitability included 
inaptitude, character and behavior disorders, disorders of intelligence and transient 
personality disorders due to acute or special stress, apathy, defective attitude, and 
inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  
Evaluation by a medical officer was required and when psychiatric indications are 
involved, the medical officer must be a psychiatrist, if one was available.  A general under 
honorable conditions or an honorable discharge was considered appropriate.
   
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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180001243

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