ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 April 2019 DOCKET NUMBER: AR20180016727 APPLICANT REQUESTS: his under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), with self-authored statement * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 26 May 1986 * DD Form 257A (General Discharge Certificate), dated 26 May 1982 * Veterans Administration (VA) Certificate of Eligibility for loan guaranty benefits, dated 6 August 1987 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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 enroll for VA hospital benefits and the Home Improvement and Structural Altercations (HISA) program. 3. The applicant enlisted in the Regular Army on 23 September 1981. 4. The applicant's commander notified the applicant on 4 May 1982 that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, for unsuitability. He specifically cited the applicant's apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively. The commander advised him that he would be recommended for discharge prior to the expiration of his term of service. His commander stated his proposed actions were based on the applicant’s fair character of service, in which he had displayed a lack of appropriate interest, and his inability to expend effort constructively, as evidenced by his failure during two military occupational specialty (MOS) courses (95B (Military Police) and 13E (Cannon Fire Direction Specialist), twice). His commander informed him that he would recommend he receive a general discharge. 5. The applicant consulted with counsel on 5 May 1982 and acknowledged he was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, paragraph 13-2, for unsuitability. He was further advised of his right to: * be represented by counsel [he waived his right to further counsel] * submit statements in his own behalf [he did not make any statements on his own behalf] * obtain documents to be presented to the separation authority * waive any of these rights * withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge 6. The applicant's commander recommended his separation from the Army prior to the expiration of his term of service, under the provisions of Army Regulation 635-200, Chapter 13, for unsuitability, based on his failure of two MOS courses and his inability to demonstrate the qualities necessary to successfully complete an MOS course. 7. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 20 May 1982, due to unsuitability, and directed that his service be characterized as general, under honorable conditions. 8. The applicant was released from active duty on 26 May 1982. His DD Form 214 shows he was released from active duty, under the provisions of Army Regulation 635- 200, Chapter 13, by reason of unsuitability – apathy defective attitude or inability to expend effort constructively. His DD Form 214 confirms his service was characterized as under honorable conditions. 9. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or post-service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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): N/A 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 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, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. b. Chapter 13 provided for separation of individuals due to unsatisfactory performance when, in the commander's judgment: * the individual would not become a satisfactory Soldier * retention would have an adverse impact on military discipline, good order, and morale * the service member would be a disruptive influence in the future * the basis for separation would continue or recur * the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely c. Service of Soldiers separated because of unsatisfactory performance was characterized as honorable or under honorable conditions. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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. //NOTHING FOLLOWS//