BOARD DATE: 7 June 2019 DOCKET NUMBER: AR20190001373 APPLICANT REQUESTS: The applicant requests his under honorable conditions discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) 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 would like his discharge upgraded to honorable. 3. On 3 January 1979, the applicant enlisted in the Regular Army for 3 years. 4. On 13 September 1979, the applicant received non-judicial punishment (NJP) for unlawfully striking a Korean women in the back of the head with a sharp object. 5. On 1 October 1980, he received NJP for being drunk and disorderly and damaging government property. 6. On 25 March 1981, the applicant received NJP for intent to commit assault and wrongfully communicate a threat to injure another Soldier. 7. On 16 April 1981, the applicant was notified by his commander he was being considered for separation under the provisions of Chapter 13, Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), for unsuitability and advised him of his rights. The applicant was advised by legal counsel and acknowledged that he understood his available rights. 8. On 16 April 1981, the commander recommended he be separated under the provisions of paragraph 13-4c (1) for apathy. The Soldier has failed to perform, or attempt to perform at a satisfactory level. He has exhibited a defective attitude and an inability to expend his effort effectively. Despite individual attention by his NCO’s, formal counseling efforts, and non-judicial punishment, his attitude has shown no improvement. 9. On 22 April 1981, the appropriate authority approved the recommendation for discharge of the applicant and directed he receive a general discharge certificate. 10. On 30 April 1981, the applicant was discharge accordingly. He completed 2 years, 10 months, and 6 days of total active service 11. The applicant’s record shows he received a Good Conduct Medal, and obtained the rank of SP5 (E-5). 12. Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 of this regulation, in effect at the time, provided for separation due to inaptitude, personality disorder, apathy and homosexuality. Paragraph 13-4c provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. The regulation requires that separation action will be taken, when in the commander’s judgment the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier. When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record. 13. In reaching its determination, the Board can consider the applicant's petition, her service record, and her statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the record and published DoD guidance for consideration of discharge upgrade requests. The Board discussed the nature and frequency of his misconduct and the application of clemency. The Board found not mitigating factors for the misconduct and determined that the character of service he received was appropriate for the actions leading to his separation; there is no error or injustice. 2. After reviewing the application and all supporting evidence, the Board determined 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 635-212, as then in effect, set forth the policy for administrative separation for Soldiers due to unfitness. It provided that Soldiers would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted otherwise. 3. AR 635-200 (Active Duty Enlisted Administrative Separations) provides for the separation of enlisted personnel, it provides: a. 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 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 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. 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. ABCMR Record of Proceedings (cont) AR20190001373 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190001373 5 ABCMR Record of Proceedings (cont) AR20190001373 3