ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 August 2019 DOCKET NUMBER: AR20180009102 APPLICANT REQUESTS: upgrade of his general discharge to honorable. 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) 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 would like to be approved for a veterans affairs home loan. 3. Review of the applicant’s service records shows: a. The applicant enlisted in the Regular Army on 26 June 1981. He reenlisted on 28 December 1983. b. The applicant accepted nonjudicial punishment on/for * 17 September 1984 for being absent without leave (AWOL) on or about 16 August 1984 until on or about 30 August 1984, reduced to private/E3 * 4 October 1984 for writing bad checks in the amount of $130.00 on or about 14 August 1984 and on or about 20 September 1984, reduced to private/E1 c. The applicant's immediate commander notified the applicant on 12 September 1984 and he acknowledged on the same day that he intended to recommend him for elimination from military service under the provisions of (AR) Army Regulation 635-200 (Enlisted Personnel – Personnel Separations), Chapter 13, for unsatisfactory performance. The commander stated * His substandard performance lack of discipline. and lack of motivation * Individual's retention will have an adverse impact on military discipline, good order and morale * Individual is likely to have a disruptive influence in present or future assignments * The circumstances forming the basis for initiation of this separation is likely to continue or recur * Individual's ability to perform duties effectively in the future, including potential for advancement or leadership is unlikely d. The applicant consulted with legal counsel on 17 September 1984. He was advised of the possible effects of a less than 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 Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He understand that if he receive a discharge certificate/character of service which is less than honorable, he may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading; however, he realize that an act of consideration by either board does not imply that his discharge will be upgraded. e. The separation authority approved the applicant's discharge on 24 September 1984, under the provisions of AR 635-200, paragraph 13-2a, for unsatisfactory performance and directed the applicant be issued a General Discharge Certificate. g. The applicant was discharged from the Army on 9 October 1984. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with AR 635-200, paragraph 13-2 (a) by reason of unsatisfactory performance. His DD Form 214 reflects his character of service as "Under Honorable Conditions (General)." He served 3 years, 3 months, of active military service. His lost time was from 16 August 1984 to 29 August 1984. 4. 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. 5. By regulation, a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. The service of members separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record. 6. 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 DOD 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 pattern of misconduct, as well as a lack of demonstrated remorse shown by the applicant for the misconduct which resulted in the separation, the Board concluded that there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s characterization of service. However, the Board noted that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately reflect his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 24 June 1981 until 27 December 1983.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 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 (Enlisted Personnel – Personnel Separations) governs the separation of enlisted personnel, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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 that regulation provides a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. The service of members separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record. 3. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). 4. 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 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. 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. ABCMR Record of Proceedings (cont) AR20180009102 4 1