ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 July 2019 DOCKET NUMBER: AR20180004856 APPLICANT REQUESTS: an upgrade of his general under honorable conditions discharge. 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 has lived a good life since he was discharged. He has not had any problems of any kind. He has chance to get a better paying job, but he has to have an honorable discharge. He is trying to improve his life with a higher paying job. With 33 years of working with no troubles he is just asking the Board to please try to consider giving him an honorable discharge. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 6 March 1984. He held the military occupational specialty 19K (M-1 Abrams Armor Crewman). b. On 11 October 1984, his DA Form 4187 (Personnel Action) shows his duty status was reported absent without leave (AWOL) through 10 November 1984. He returned to military control on 11 November 1984. c. On 14 November 1984, he was convicted by a summary court-martial of one specification of AWOL, 11 October 1984 to 11 November 1984 and one specification of operating a vehicle in a reckless manner while drunk. The court sentenced him to reduction to private/E-1, confinement at hard labor for 30 days, and forfeiture of $397 pay per month for one month. d. On 21 November 1984, the convening authority approved the sentence and ordered it executed. On 7 December 1984, he was released from confinement. e. On 27 December 1984, the applicant’s immediate commander notified him of his intent to initiate elimination action against him in accordance with chapter 13-2 Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for unsatisfactory performance: Applicant was guilty of a serious crime. He was unsuitable for service in the Army. f. On that same date, the applicant acknowledged receipt of the notification. He consulted with legal counsel. He acknowledged: * he had been advised of the basis for the contemplated action under the provisions of chapter 13, AR 635-200 for unsatisfactory performance and its effects of the rights available to him and the effect of any action taken by him waiving his rights * he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he understood that a general discharge under honorable conditions is the least favorable characterization of service he may receive g. On 28 December 1984, the unit commander recommended separation under the provisions of chapter 13, paragraph 13-2, AR 635-200 for unsatisfactory performance. The commander opined that the applicant had shown that his course of action was to run away from a problem. He did not take actions to recover or improve his position to return to the unit. He had no regard to his unit, the Army or other Soldiers. He had no respect for those above him. h. On 1 January 1985, the separation authority approved the applicant’s discharge under the provisions of chapter 13, AR 635-200 and directed that he be issued a General, Under Honorable Conditions Discharge Certificate. i. On 17 January 1985, the applicant was discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with chapter 13 of AR 635-200 for unsatisfactory performance with an under honorable conditions characterization of service. He completed 8 months and 19 days of active service, with 3 months and 19 days of prior inactive service and lost time from 11 October to 10 November 1984 and 14 November to 6 December 1984. It also shows he was awarded or authorized the Army Service Ribbon, Expert Marksmanship Qualification Badge with Hand Grenade Bar. j. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 4. By regulation AR 635-200, a Soldier may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. Commanders will separate a Soldier for unsatisfactory performance when it is clearly established that in the commander’s judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and /or become a satisfactory Soldier 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 review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. After completing a short term of honorable service prior to his misconduct which led to the separation, he was discharged after a pattern of misconduct and was provided an Under Honorable Conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. 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 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the requirements and procedures for administrative discharge of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) 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. b. Chapter 13, of the regulation provides for separation due to unsatisfactory performance when a member may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. Commanders will separate a Soldier for unsatisfactory performance when it is clearly established that: In the commander’s judgment, 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. 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 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 on the basis of 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180004856 4 1