ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 May 2019 DOCKET NUMBER: AR20180001635 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) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 requests his discharge status be changed from general to honorable. He would like to exercise his right to an appeal. He was unable to adapt to military life due to his sexual preference. 3. The applicant provides his DD Form 214 which shows he was discharged on 29 August 1983 for entry level status performance and conduct. 4. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army on 16 March 1983. b. He accepted non-judicial punishment on/for: * 31 March 1983, insubordinate conduct and false official statements * 17 June 1983, drunk and disorderly conduct, assault, destruction to military property, and insubordinate conduct c. On 27 June 1983, his immediate commander notified him of proposed separation action under provision of chapter 11, (Entry Level Status Performance and Conduct a. (Trainee Discharge Program) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for his inability to adjust to demands of military life. d. On 27 June 1983, the applicant acknowledge the following: * Notification of proposed separation * To consult with consulting counsel * To make a written statement of rebuttal * To obtain copies of documents that will be sent to the separation authority supporting the proposed separation * Not to have a separation medical examination if the separation is approved e. On 27 June 1983, the applicant made a statement in opposition to chapter 11 discharge proceedings. He stated: (1) The government bases the proposed discharge on problems he had shortly after coming on active duty in March and on recent incidents including his performance on testing and a failure of the Army Physical Readiness Test (APRT) in May. He did have trouble shortly after coming on active duty in March. The counseling statements that accompany this packet refer to two incidents in one week time in late March. Those incidents are three months old; he paid for and learned from his mistakes and they should not support separating him from the Army. He did fail an APRT on 9 May, which is referred to in a 16 June counseling statement. He had had a boil removed from his buttocks the previous day and the doctor had forgotten to put him on profile. He passed the APRT, on 12 June, with a score of 246, so there should be little question about his physical fitness and this hardly supports the claim that he had a "history of failing" PT tests. He did not receive outstanding scores in testing but he did pass. (2) The Army asks that he meet its standards and he did so after putting out his best efforts. Every Soldier should want to improve as he does, but meeting the Army's standards should not be grounds for eliminating him from the Army. Regarding the incident the night before graduation, the fracas was the result of heavy drinking and horseplay among trainees. He received a Field Grade Article 15 and have paid for it and learned from it. He is committed to serving his term of enlistment in the Army. He believes that he has made significant improvement in his 3 1/2 months in the Army and that the grounds stated are insufficient to support his discharge. Therefore, he respectfully request that he be retained for further service. f. 28 June 1983 the command recommended the applicant be separated under the provisions of chapter 11 of AR 635-200. The chain of command concurred with the recommendation. a. g. On 6 July 1983, the separation authority approved the applicant to be discharged UP of chapter 11, AR 635-200, and ordered the applicant receive an entry level separation (uncharacterized). h. Before the separation was executed, the applicant was tried by a court-martial. On 19 July 1983, the applicant was tried before a summary court-martial of the charges one specification of breaking restriction and three specifications of insubordinate conduct. The court sentenced him to be confined at hard labor for 30 days, and to forfeit $382.00 pay per month for one month. The convening authority approved the sentence on 4 August 1983. i. On 15 August 1983, his immediate commander recommended the applicant discharge under the provisions of Chapter 14 (Misconduct) of AR 635-200. The chain of command concurred with the recommendation. j. The applicant acknowledged the following rights: * Consult with consulting counsel * Submit written statements of rebuttal in his own behalf * Obtain copies of documents that will be sent to the separation authority supporting the proposed separation * Have a separation medical examination if the separation is approved k. On 25 August 1983, the separation authority approved the applicant to be discharged UP of chapter 14-12b (A Pattern of Misconduct), AR 635-200. An entry level separation uncharacterized is awarded. l. On 29 August 1983, he was discharged with an entry level status (uncharacterized) discharge in the rank of PVT/E-1. He was awarded the Army Service Ribbon. 5. By regulation (AR 635-200), chapter 11 of this regulation, in effect at the time, provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry level status. This provision of regulation applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation, or self-discipline for military service, or they had demonstrated characteristics not compatible with satisfactory continued service. The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self- discipline. The regulation required an uncharacterized description of service for separation under this chapter. A general discharge is not authorized. 1. 7. 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 found the relief was not warranted. Based upon the short term of service completed prior to a pattern of misconduct beginning, some of which included violent behavior, 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 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a(1) states an honorable discharge is a separation with honor. 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. Only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted. b. Paragraph 3-7b(1) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7b(2) states a characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. d. Chapter 11 of this regulation, in effect at the time, provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry level status. This provision of regulation applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation, or self-discipline for military service, or they had demonstrated characteristics not compatible with satisfactory continued service. The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline. The regulation required an uncharacterized description of service for separation under this chapter. 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 1. 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 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.