ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  3 May 2019

	DOCKET NUMBER:  AR20180016987


APPLICANT REQUESTS:  His under honorable conditions (general) discharge be 
upgraded to a fully honorable discharge, and correction of his DD Form 214 (Certificate 
of Release or Discharge from Active Duty) to change his narrative reason for separation 
from "Unsatisfactory Performance"  to "Convenience of the Government/Secretarial 
Authority" or some other non-derogatory reason.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code Section 1552)
*	Memo from Homeless Persons Representation Project, Inc.

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 his record is unjust due to a change in practice.  If a Soldier in 
the Army today was facing the same charges, they would not receive the same 
character of service.  He was harassed, he sought self-improvement, and sought relief 
by form of a transfer.  In the interest of justice, the Board should consider his application 
for correction and make changes in accordance with current practices.     

3.  The applicant enlisted in the Regular Army on 18 March 1983. 

4.  The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 
15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the 
indicated offenses:

*	on 12 January 1984, for failing to go at the prescribed time to his appointed place 
of duty, on or about 15 December 1983, and for willfully disobeying the lawful 
order of a commissioned officer, on or about 28 December 1983
*	on 27 February 1984, for failing to go at the prescribed time to his appointed 
place of duty, on or about 7 February 1984 

5.  The applicant's immediate commander notified the applicant on 20 April 1984 of his 
intent to initiate separation actions against him under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, paragraph 13-2a, 
by reason of his two instances of NJP, his failure to repair, and his displayed 
disobedience toward a commissioned officer. 

6.  The applicant consulted with counsel and acknowledged receipt of the proposed 
separation notification on 20 April 1984.  He was advised of the basis for the 
contemplated separation action and its effects, the rights available to him, and the 
effects of a waiver of his rights.  He further acknowledged he understood he could 
expect to encounter substantial prejudice in civilian life in the event a general discharge 
was issued to him.  He understood that he may, up until the date the separation 
authority orders, directs, or approves his separation to withdraw any such waiver.  He 
also elected to make a statement in his own behalf.  In effect, he noted:

*	since his first Article 15, he felt his noncommissioned officer (NCO) treated him 
unfairly 
*	his NCO made a statement to the effect that he would have him chaptered out of 
the Army
*	he asked for a transfer but was denied
*	he felt he could do his job if he wasn’t harassed by his NCO

7.  Documented in the applicant's record were two character statements provided by 
two NCOs.  In effect the statements are as follows:

*	Sergeant (SGT) D noted that after a while of being in his section, the applicant 
began to do his work
*	SGT D noted that the applicant always did what he was told without hassle or 
question
*	SGT D suggested that if the applicant was not allowed to continue on active duty, 
he should be allowed to go into the U.S. Army Reserve
*	SGT T noted that he gave the applicant an order to go conduct personal hygiene, 
and during time he was conducting hygiene, he missed formation and was 
disciplined for not being at the appointed place at the appointed time
    
8.  The applicant's commander formally requested his separation under the provisions 
of Army Regulation 635-200, Chapter 13.  The separation authority approved the 
recommended discharge and directed that the applicant be issued an under honorable 
conditions (general) discharge.

9.  The applicant was discharged on 10 May 1984.  His DD Form 214 confirms he was 
discharged under the provisions of Army Regulation 635-200, Chapter 13, by reason of 
unsatisfactory performance.  His service was characterized as under honorable 
conditions.

10.  The Board should consider the applicant's statement 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 sufficient 
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.  His separation packet had letters to support his contention of 
mitigating circumstances connected to his misconduct.  The Board agreed to change his 
characterization of service to honorable and mask his reason for separation. 

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:X	:X	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a 
recommendation for relief.  As a result, the Board recommends that all Department of 
the Army records of the individual concerned be corrected by reissuing the applicant a 
DD Form 214 for the period ending 10 May 1984 showing his characterization of service 
as honorable, and his narrative reason for separation as “Secretarial Authority.” 


	  
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 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 sets forth the requirements and procedures for 
administrative discharge of enlisted personnel.

	a.  Paragraph 3-7a 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.  

	b.  Chapter 13 provides for separation due to unsatisfactory performance when in 
the commander’s judgment the individual will not become a satisfactory Soldier; 
retention will have an adverse impact on military discipline, good order and morale; the 
service member will be a disruptive influence in the future; the basis for separation will 
continue or recur; and/or the ability of the service member to perform effectively in the 
future, including potential for advancement or leadership, is unlikely.  Service of Soldiers 
separated because of unsatisfactory performance under this regulation will be 
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//

ABCMR Record of Proceedings (cont)	 AR20180016987

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