IN THE CASE OF: BOARD DATE: 20 December 2019 DOCKET NUMBER: AR20180005620 APPLICANT REQUESTS: His under honorable conditions (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 or Dismissal from the Armed Forces of the United States), dated 30 November 2017 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 8 April 1985 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 tore his Achilles tendon while he was serving at Fort Sill, Oklahoma. 3. The applicant enlisted in the Regular Army on 10 January 1984. Following his completion of initial entry training, he was assigned to Fort Sill, Oklahoma, where he arrived on or about 18 June 1984. 4. The applicant accepted nonjudicial punishment (NJP) on three separate occasions between 10 October 1984 and 21 February 1985, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for the following infractions: * for lying about signing a head count sheet (DA Form 3351), on or about 2 October 1984 * for being absent without leave (AWOL) from on or about 26 October until on or about 31 October 1984 * for being AWOL from on or about 14 January until on or about 20 January 1985 5. The applicant was counseled on 3 December 1984, 28 January 1985, 31 January 1985, and 4 February 1985, for missing formation. 6. The applicant's commander notified the applicant on 30 March 1985 that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, for unsatisfactory performance. The applicant acknowledged receipt of the notification on 30 March 1985. 7. The applicant consulted with counsel and was advised of the basis for the contemplated action to accomplish his separation for unsatisfactory performance. During his consultation with counsel, he made an election not to submit a statement in his own behalf. 8. The applicant's commander formally recommended the applicant's separation from service on 30 March 1985, under the provisions of Army Regulation 635-200, Chapter 13, by reason of unsatisfactory performance. The separation authority approved the recommendation for discharge and directed the issuance of a DD Form 257A (General Discharge Certificate). 9. The applicant was discharged on 8 April 1985, under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance. His DD Form 214 confirms his service was characterized as under honorable conditions (general). 10. The Board should consider the applicant's provided statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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 basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides 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. Chapter 13 of this regulation provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180005620 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180005620 4 ABCMR Record of Proceedings (cont) AR20180005620 3