ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 June 2019 DOCKET NUMBER: AR20190001367 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. 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), with self-authored statement dated 13 December 2018 * two character reference letters 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 believed he was in standards with the armed forces and its duties. He has never been in trouble and was obedient to all commands. He didn’t know he had a general discharge until to Veterans Administration explained it to him. 3. The applicant enlisted in the Regular Army on 27 September 1977. 4. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15, of the Uniform Code of Military Justice (UCMJ), on the following occasions: * on 6 April 1978, for failing to go at the prescribed time to his appointed place of duty, on or about 4 April 1978 and on or about 5 April 1978 * on 22 April 1978, for failing to go at the prescribed time to his appointed place of duty, on or about 20 April 1978 5. The applicant’s service record contain: a. A DA Form 2496 (Disposition Form) showing his commander requested a physical and psychiatric examination on 24 April 1978, due to his pending recommendation for administrative separation. b. A DA Form 3822-R (Report of Mental Status Evaluation), showing he was being screened for an unsuitability discharge on 9 May 1978. c. A Standard Form 88 (Report of Medical Examination), showing he was evaluated and qualified for an administrative separation on 9 May 1978. 6. The applicant’s immediate commander notified the applicant that he was initiating separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, for unsuitability. 7. The applicant acknowledged notification of the pending separation memorandum on 10 May 1978. 8. The applicant's immediate commander formally recommended his separation from service on 10 May 1978, under the provisions of Army Regulation 635-200, Chapter 13, for unsuitability. His commander cited his severe adjustment problems to military life, which resulted in two Article 15s for failing to be at his appointed place of duty. The commander’s request notes his record of extensive counseling from his entire chain of command and shows he was counseled on at least 5 separate occasions and received a rehabilitative transfer. 9. The applicant consulted with counsel on 18 May 1978 and was advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, Chapter 13, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He acknowledged he may encounter substantial prejudice in civilian life, if he received a under other than honorable conditions discharge. He waived further representation by counsel; waived consideration of his case by, and personal appearance before, a board of officers; and declined to make a statement in his own behalf. 10. The applicant’s intermediate commander recommended his elimination on 18 May 1978, under the provisions of Army Regulation 635-200 Chapter 13. His commander stated "the applicant is rendered totally untrainable by his apathy, lack of motivation and negative attitude [emphasis added]. After interviewing [the applicant], I felt further retention would be detrimental to his unit of assignment and the US Army." 11. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge, on 18 May 1978 under the provision of Army Regulation 635-200, Chapter 13, and directed he receive a General Discharge Certificate. 12. The applicant's separation documentation does not show his separation was based on noted character and behavior (personality) disorders. 13. The applicant was discharged on 24 May 1978. His DD Form 214 (Report of Separation from Active Duty), shows he was discharged under the provisions of Army Regulation 635-200, paragraph 13-4c, and his service was characterized as under honorable conditions. His DD Form 214 further shows in: * Item 9c (Authority and Reason), the entry “SPD JMJ Para 13-4c AR 635-200 Unsuitability-apathy, defective attitude or inability to expend effort constructively” * Item 18c (Total Active Service), he was credited with completing 7 months, and 28 days of active service 14. Army Regulation 635-200 provided the authority for the separation of enlisted personnel upon expiration of term of service; the authority and general provisions governing the separation of enlisted personnel prior to expiration of term of service; and the criteria governing the issuance of Honorable and General Discharge Certificates. a. Chapter 13 of the version in effect at the time provided for the separation of Soldiers for unsatisfactory performance. b. Paragraph 13-4c provided that commanders exercising special court-martial jurisdiction were authorized to convene boards of officers for unsuitability and to order separation, in cases not involving Soldiers who had served 18 or more years. c. Paragraph 13-5a of the version in effect at the time provided for the separation of Soldiers for unfitness (misconduct), and paragraph 13-5b provided for the separation of Soldiers for unsuitability. (1) Sub-paragraph (1) applied to those Soldiers being separated for inaptitude. (2) Sub-paragraph (2) applied to those Soldiers being separated for character and behavior disorders [later deemed personality disorders]. (3) Sub-paragraph (3) applied to those Soldiers being separated for apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively. 15. The applicant provides 2 character letters, showing he is: * a great neighbor, willingly to do anything without hesitation * a strong Christian, who is active in his church * talks about God's goodness in his life or what God is teaching him * caring, and a gentle giant who has fostered several kids * dependable, honest, reliable * role model and community leader 16. In reaching its determination, the Board should consider the applicant's provided evidence (third-party character reference letters) 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 board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the applicant had limited honorable service, no meritorious personal awards, no wartime service and insufficient evidence of mitigating circumstances for the unsatisfactory performance. Furthermore, the applicant's post- service conduct is noted. However, post-service conduct alone is not normally a basis for changing a characterization of service. The Board agreed that the applicant’s discharge characterization is appropriate. 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 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, provided for the separation of enlisted personnel from the Regular Army. It states: a. 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. b. Chapter 13 established policy and prescribed procedures for separating Soldiers for unsuitability. Paragraph 13-4c provided, in pertinent part, that 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 non-disabling illnesses. The presence of a physical or mental disease or defect-producing impairment of function insufficient to warrant separation under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and related regulations is no bar to discharge for unsuitability. c. An individual separated because of unsuitability was furnished an honorable or general discharge certificate as warranted by his or her military record. 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. a. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs 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. b. 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. c. 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) AR20190001367 5 1