IN THE CASE OF: BOARD DATE: 23 May 2019 DOCKET NUMBER: AR20180013391 APPLICANT REQUESTS: The applicant requests the under honorable conditions be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 17 Awards and/or Certificates * 3 College Degrees 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 she believes her record to be unjust. Her discharge was inequitable based on one incident in 18 months with no other adverse action. She was young and immature; not ready for the responsibility of military service. After her separation she went on to earn her associate, bachelors and master degrees along with serving on the Chicago Police Department. During her 22 year service on the police force she adopted and raised a child. She is active in her church and she volunteers in her community. 3. On 8 May 1979, the applicant enlisted in the Regular Army. 4. On 14 July 1980, she received non-judicial punishment (NJP) for failing to obey a lawful order. 5. On 21 October 1980, she received NJP for failing to go at the prescribed appointed place of duty on seven different occasions. 6. On 20 October 1980, the applicant was notified by her commander she was being considered for separation under the provisions of Chapter 13, Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), for misconduct and advised of her rights. 7. On 28 October 1980, the applicant was advised by legal counsel and acknowledged that she understood her available rights. 8. On 29 October 1980, her commander recommended she be separated under the provisions of paragraph 13-4c (1). This Soldier has failed to perform, or attempt to perform at a satisfactory level. She has consistently displayed an apathetic attitude towards responsibilities and obligations. She has proven to be a disruption to good order and discipline and is a negative influence on co-workers. She was a rehabilitative transfer to this unit from the Military Police Command. She has, through her actions, convinced the entire chain of command that she has no place or future in the Army. 9. On 7 November 1980, the appropriate authority approved the recommendation for discharge of the applicant and directed she receive a general discharge under honorable conditions. 10. On 20 November 1980, the applicant was discharge accordingly. She completed 1 year, 6 months, and 14 days of total active service. 11. The applicant states she was young and immature but after her discharge she went on to earn three degrees, retire from the Police Department after 22 years, and during that time she adopted and raised a daughter. She provides 17 award certificates as well as a copy of her college degrees. 12. Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 of this regulation, in effect at the time, provided for separation due to inaptitude, personality disorder, apathy and homosexuality. Paragraph 13-4c provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. The regulation requires that separation action will be taken, when in the commander’s judgment the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier. When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record. 13. In reaching its determination, the Board can consider the applicant's petition, her service record, and her statements in light of the published guidance on equity, injustice, or clemency. 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. While the Board noted the applicant's post-service honorable conduct is noted, that alone is not normally a basis for changing a characterization of service. The Board heavily weighed the applicant’s limited creditable service, lack of wartime service and no mitigating circumstances for the misconduct and the Board agreed that the applicant’s discharge characterization is 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. ADMINISTRATIVE NOTE(S): Not Applicable 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. AR 635-212, as then in effect, set forth the policy for administrative separation for Soldiers due to unfitness. It provided that Soldiers would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted otherwise. 3. AR 635-200 (Active Duty Enlisted Administrative Separations) provides for the separation of enlisted personnel, it provides: 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 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. 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 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. 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. //NOTHIING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180013391 3 ABCMR Record of Proceedings (cont) AR20180013391 4