ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 May 2019 DOCKET NUMBER: AR20180015525 APPLICANT REQUESTS: an upgrade to his general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD From 214 (Certificate of Release or Discharge From Active Duty) * Self-Authored Statement * Copy of his Government Issued Identification Card 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 was under the understanding that after 6 months his discharge characterization would automatically be upgraded to an honorable discharge. All of the information regarding his discharge was not given to him and he found out through the cancellation of his insurance that he needed to apply for an upgrade to his discharge, and because of the severity of his wife’s illness, this would benefit them greatly. He is asking for the Board’s consideration. 3. A review of the applicants’ record shows the following: a. Having had prior service, the applicant reenlisted in the Regular Army on 29 July 1977. b. He received discharge orders with an honorable discharge effective 28 April 1981 for the purpose of immediate reenlistment on 29 April 1981 as a sergeant/E-5 for a period of 6 years. c. He served in Turkey from 7 March 1979 to 6 March 1980. d. He accepted non-judicial punishment (NJP) on 28 September 1981 for wrongfully having in his possession some amount of marijuana. His punishment included reduction to specialist/E-4, forfeiture of pay for 2 months, suspended until 27 March 1982, and extra duty for 30 days. e. He accepted NJP on 9 March 1982 for wrongfully attempting to sell one gram, more or less, of a habit forming narcotic drug to wit: cocaine and for stealing $20.00, the property of the United States Government. His punishment included reduction to private/E-1. f. His immediate commander initiated a bar to reenlistment on 10 March 1982, citing the Uniform of Military Justice violations outlined in the summary NJP, dated 28 September 1982 and 9 March 1982. g. On 3 August 1982, the applicant’s status changed from present for duty to absent without leave (AWOL). h. On 11 August 1982, applicant was picked up by AWOL apprehension changing his status from AWOL to confinement by military personnel. On 19 August 1982, his status changed from confined with military authorities to present for duty. i. The applicant's immediate commander notified him of his intent to initiate separation proceedings against him under the provisions of chapter 13 of Army Regulations (AR) 635-200 (Personnel Separations-Enlisted Separations) for unsatisfactory performance. The commander advised him of his rights to counsel, and provided him an opportunity to submit statements on his behalf. j. The applicant signed the acknowledgement of notification, waived his rights to counsel and waived the consideration of his case by an administrative separation board. He did not provide a statement on his behalf. k. On 7 January 1983, the applicant was recommended for separation by his subsequent commanders. The separation authority approved his separation on 12 January 1983 and directed the applicant to receive a general, under honorable conditions character of service. l. The applicant was discharged on 2 February 1983, under the provisions of AR 635-200, chapter 13, due to unsatisfactory performance. His DD Form 214 shows he completed 5 years, 5 months and 20 day of active service and total prior service time was 2 years, 6 months and 26 days. He was given a under honorable conditions (general) discharge. It also shows he was awarded or authorized: * Army Service Ribbon * Overseas Service Ribbon * Good Conduct Medal (2nd Award * Sharpshooter Marksmanship Badge with Rifle Bar * Army Commendation Medal 5. By regulation, AR 635-200, Soldiers are subject to separation under the provisions of chapter 13, when he or she is unqualified for further military service because of unsatisfactory performance. An honorable or under honorable conditions (general) discharge was an appropriate and authorized characterization of service. 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. 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 partial relief was warranted. Based upon the multiple durge offenses that led to discharge and the applicant already receiving a general discharge, the Board concluded that charactertization of service received at the time of discharge was appropriate. However, the Board did note that the applicant had a prior term of honorable service which is not currently noted on his DD Form 214. For that reason, the Board recommended adding the prior honorable service to the applicant’s DD Form 214. 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 770729 to 810428.” 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 under other than honorable conditions. 5/22/2019 X CHAIRPERSON 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 (Personnel Separations-Enlisted Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor. 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. Paragraph 3-7b a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the member’s separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. c. Paragraph 13-1, of this version, in effect at the time, established policy for members that may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. d. Paragraph 13-2 says that commanders will separate a member for unsatisfactory performance when it is clearly established that: * in the commander’s judgement, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier * the seriousness of the circumstances is such that the member’s retention would have an adverse impact on military discipline, good order, and moral * it is likely that the member will be a disruptive influence in the present or future duty assignments * it is likely that the circumstances forming the basis for initiation of separations proceedings will continue or recur * the ability of the member to perform duties effectively in the future, including potential for advancement or leadership is unlikely 3. 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.