ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	 

	BOARD DATE:  21 May 2019

	DOCKET NUMBER:  AR20180013785


APPLICANT REQUESTS:  The applicant requests his discharge general 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)
*	Diploma, Food Service Specialist Course, U.S. Army Training Center, Fort 
Jackson, SC, dated 2 March 1982
*	DD Form 214 (Certificate of Release or Discharge from Active Duty) for period 
ending 23 April 1982

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:

   a.  He was offered this discharge with the understanding that if he was a good 
citizen and maintained an honorable lifestyle that an upgrade to an honorable discharge 
would be attainable.  He has never been arrested for anything in his civilian life.  He is 
married and has raised three children.  He considers himself to be a good, upstanding, 
law abiding, and respectful citizen.  
      
   b.  He graduated from basic training and Military Police School.  He also became a 
two-time Hometown Recruiter.  He is a former military police officer who had personal 
issues and took it upon himself to go home.  His mom was in an abusive relationship 
with his step-father and he felt the need to help her.  He confronted his step father on 
several occasions and missed several months of duty.  He turned himself in and was 
sentenced to confinement in the Philadelphia Naval Brig.  After he was released from 
confinement he attended and graduated from the Retraining Brigade, Fort Riley, KS.  
He was then assigned to Cook School, Fort Jackson, SC and graduated.

3.  On 2 December 1980, at the age of 20 years old, the applicant enlisted in the 
Regular Army for a term of 3 years.  On 29 January 1981, he entered active duty.

4.  On 11 June 1981, the applicant went absent without leave (AWOL) and surrendered 
to military authorities on 14 June 1981.  On 7 July 1981, he again went AWOL and was 
dropped from the unit rolls.  On 31 August 1981, he returned to military control.

5.  On 1 October 1981, the applicant was convicted by special court-martial for two 
specifications of being AWOL:  from on or about 11 June 1981 and remained absent 
until on or about 14 June 1981 and from on or about 7 July 1981 and remained absent 
until on or about 31 August 1981, AWOL for a total of 58 days, and one specification of 
failing to go at the time prescribed to his appointed place of duty.  He was sentenced to 
confinement at hard labor for two months, forfeiture of pay, and reduction to private one 
(PV1)/E-1.  On 28 October 1981, the sentence to confinement was deferred.  On 
16 November 1981, the convening authority approved the sentence and ordered it 
executed and the deferment to confinement was rescinded.    

6.  His record shows the applicant received counseling statements for failing the Army 
Physical Fitness Test for a second time and wearing civilian clothes when it was against 
brigade and company policy for him to do so.

7.  On 25 March 1982, the applicant’s immediate commander notified the applicant that 
he was initiating separation actions against him under the provisions of Army Regulation 
(AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for 
unsuitability for the applicant’s physical inaptitude and failure to follow instructions.

8.  The applicant acknowledged he had been notified of the pending separation action 
against him and he had been advised by his consulting counsel of the basis for the 
contemplated action, understood his rights, waived personal appearance before a 
board, and elected not to submit a statement in his own behalf.  

9.  The chain of command recommended approval of the separation action.  On 16 April 
1982, the appropriate commander approved the recommendation for separation, 
directing the applicant be issued a General, Under Honorable Conditions Discharge 
Certificate.

10.  On 23 April 1982, the applicant was discharged accordingly.  His service was 
characterized as general under honorable conditions.  He completed 1 year of net 
active service this period.  His DD Form 214 (Certificate of Release or Discharge from 
Active Duty), shows Dates of Time Lost During This Period:  "810611-810613" and 
"810707-810830"; and he was awarded or authorized:

*	Army Service Ribbon
*	M-16 Rifle Expert Marksmanship Qualification Badge
*	Pistol (.45 cal.) Expert Marksmanship Qualification Badge
*	Hand Grenade Sharpshooter Marksmanship Qualification Badge

11.  The applicant provides a Diploma, Food Service Specialist Course, U.S. Army 
Training Center, Fort Jackson, SC, showing he successfully completed the course.

12.  The applicant states he is a former Military Police Officer who had personal issues 
and took it upon himself to go home because his mom was in an abusive relationship 
with his step-father and he felt the needed to help her.  His record shows that he 
enlisted at the age of 20 and the he was convicted by special court-martial for two 
specifications of being AWOL, resulting in 58 days of lost time, and one specification of 
failing to go at the time prescribed to his appointed place of duty.  He completed 
12 months of his 36 months contractual obligation.

13.  AR 635-200, paragraph 13-4c, provided an individual would be subject to 
separation if he or she exhibited behaviors of apathy (lack of appropriate interest), 
defective attitudes, and inability to expend effort constructively.  The Soldier will be 
furnished an honorable or general discharge certificate as warranted by his military 
record.

14.  In reaching its determination, the Board can consider the applicant's petition and his 
service record in light of the published DOD guidance on equity, injustice, or clemency.

BOARD DISCUSSION:

1.  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 and whether to apply clemency. 
The Board considered his statement, but found no additional evidence of mitigating 
factors for his periods of AWOL; the applicant did not provide evidence of post-service 
achievements or letters of reference in support of a clemency consideration.  Based on 
the preponderance of evidence, the Board found insufficient reason to provide relief and 
determined that the character of service the applicant received at discharge was not in 
error or unjust.

2.  After reviewing the application and all supporting documents, the Board found that 
relief was not warranted.




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.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at 
the time, provided for the separation of enlisted personnel from the Regular Army.  It 
states:

	a.  Chapter 13 established policy and prescribed procedures for separating Soldiers 
for unsuitability.  Paragraph 13-4c under the provisions of unsuitability, provided, in 
pertinent part, an individual would be subject to separation if he or she exhibited 
behaviors of apathy (lack of appropriate interest), defective attitudes, and inability to 
expend effort constructively.  While lack of appropriate interest or other defective 
attitudes may be manifested in conjunction with physical defects or mental or organic 
diseases, including psychoneurosis, these traits are not necessarily produced by the 
physical or disease process.  On the other hand, individuals considered for elimination 
may attempt to excuse immature, inadequate, and undisciplined behavior on the basis 
of minor or nondisabling illnesses.  The presence of a physical or mental disease or 
defect-producing impairment of function insufficient to warrant separation under the 
provisions of AR 685-40 (Physical Evaluation for Retention, Retirement, or Separation) 
and related regulations is no bar to discharge for unsuitability.

	b.  An honorable discharge is a separation with honor and entitles the recipient to 
benefits provided by law.  The honorable characterization appropriate when the quality 
of the member's service generally has met the standards of acceptable conduct and 
performance of duty for Army personnel.

	c.  An individual separated because of unsuitability will be furnished an honorable or 
general discharge certificate as warranted by his military record.

5.  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 regarding equity, injustice or clemency determinations. 
Clemency generally refers to relief specifically granted from a criminal sentence and 
BCMRs 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 discharge, which may be 
warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated 
principles in the guidance as well as eighteen individual factors related to the applicant.


ABCMR Record of Proceedings (cont)	 AR20180013785

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