IN THE CASE OF: BOARD DATE: 24 June 2019 DOCKET NUMBER: AR20180015063 APPLICANT REQUESTS: * an upgrade of his under honorable conditions (general) discharge * personal Board appearance 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 makes an unclear statement about his signature on non-judicial punishment documents and other documents in his record. He requests to change his discharge to read “honorable under honorable conditions.” Sergeant W wanted him to look bad in front of the discharge board. He had written a 4 to 5 page letter requesting the type of discharge he desired. He had little to no knowledge of what type of discharge he was asking for. Furthermore, he has had no trouble with the law since 2009. He was setup to appear guilty of crimes he never committed. 3. On 7 June 1979, at the age of 18, the applicant enlisted in the Regular Army for 3 years. 4. On 8 January 1980, he was given a letter of reprimand for drinking alcoholic beverages in room 102 when the bed he was sitting on caught on fire. According to a witness, he was very intoxicated and smoking a cigarette at the time. This was a blatant violation of Article 108 of the Uniform Code of Military Justice (Destruction of Government Property) which was punishable by confinement to hard labor for three months and forfeiture of two-thirds pay per month for a period not to exceed three months. He also violated specific fire regulations by irresponsible actions with flammable material. 5. He was counseled on multiple occasions for: * failing to follow orders * disobeying a lawful order * being late to his appointed place of duty * failing to be at his appointed place of duty on multiple occasions * violating the rules of a command directed drug and alcohol program on numerous occasions 6. During the period of January to April 1980 he received non-judicial punishment (NJP) on 3 occasions for: * disobeying a lawful order on 2 occasions * failing to be at his appointed place of duty on 2 occasions * breaking restriction 7. The applicant’s signature is shown on the DA Forms 2627 (Record of Proceedings Under Article 15, Uniformed Code of Military Justice). He elected not to appeal the NJP. 8. On 1 May 1980, a Bar to Reenlistment was approved and imposed against the applicant based on receiving NJP on 3 occasions. He indicated that he had been counseled and advised of the basis for the action. He elected not to submit a statement in his own behalf. Other factual and relevant indicators of the applicant’s untrainability or unsuitability were: * he could not perform his duties without constant supervision * he lacked maturity and sound judgement * he was not dependable or trusted to accomplish simple tasks * he continued to drink heavily even after being referred to a command directed drug and alcohol program 9. In July 1980, a medical examination and a mental status evaluation cleared the applicant for administrative separation. 10. On 29 July 1980, the applicant's commander notified him that he was initiating action to discharge him under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct due to his frequent incidents of a discreditable nature. The applicant was advised of his rights and the separation procedures involved. 11. The applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights. a. He waived consideration of his case by a board of officers and waived a personal appearance before an administrative separation board. b. He indicated that he would submit statements in his own behalf and stated, in pertinent part, he was harassed and treated unfairly. He did not receive sufficient training on the wrecker. He requested a transfer, but it was denied. He had family problems and was supporting his family financially. His offenses were minor and a chapter 13 would have been more appropriate. c. He consulted with military legal counsel and he was advised he may expect to encounter substantial prejudice in civilian life in the event a general, under honorable conditions discharge was issued to him. He acknowledged he understood that if he received an under other than honorable conditions discharge, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. d. His chain of command recommended approval of the applicant's separation action. e. The separation authority disapproved the recommendation for elimination based on misconduct; nevertheless, the separation authority approved the elimination action of the applicant under the provisions of chapter 13-4c for unsuitability with a General Discharge Certificate. 12. On 22 August 1980, the applicant was discharged accordingly. His DD Form 214 shows he was discharged under the provisions (UP) of AR 635-200, paragraph 13-4c. He had completed 1 year, 2 months and 16 days of creditable active service. He was not awarded a personal decoration. 13. AR 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel. a. Chapter 13, in effect at that time, provided for separation of enlisted members found to be unfit or unsuitable for further military service. Separation action would be taken when, in the commander's judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier. Service of Soldiers separated because of unfitness under this regulation was characterized as under other than honorable conditions, except that an honorable or under honorable conditions discharge could be issued if warranted by the particular circumstances in the Soldier's case. b. The regulation 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. 14. AR 635-5-1 (Separation Program Designators), in effect at the time of the applicant's separation, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It shows for enlisted Soldiers involuntarily discharged UP AR 635-200, paragraph 13-4c, "Unsuitability – Apathy, Defective Attitude or Inability to Expend Effort Constructively" is the appropriate entry for item 28 of the DD Form 214. (It also shows SPD code "JMJ" is the appropriate entry for item 26 (Separation Code).) 15. In regards to the applicant's request for a personal appearance, Army Regulation 15-185, states an applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. 16. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency determination guidance. 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, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-servie 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 relief was not warranted. \ 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. 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. AR 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel. a. Chapter 13, in effect at that time, provided for separation of enlisted members found to be unfit or unsuitable for further military service. Separation action would be taken when, in the commander's judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier. Service of Soldiers separated because of unfitness under this regulation was characterized as under other than honorable conditions, except that an honorable or under honorable conditions discharge could be issued if warranted by the particular circumstances in the Soldier's case. b. The regulation 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. 3. AR 635-5-1, in effect at the time of the applicant's separation, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It shows for enlisted Soldiers involuntarily discharged UP AR 635-200, paragraph 13-4c, "Unsuitability – Apathy, Defective Attitude or Inability to Expend Effort Constructively" is the appropriate entry for item 28 of the DD Form 214. (It also shows SPD code "JMJ" is the appropriate entry for item 26 (Separation Code).) 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 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. 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. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. ABCMR Record of Proceedings (cont) AR20180015063 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180015063 7 ABCMR Record of Proceedings (cont) AR20180015063 5