ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 July 2019 DOCKET NUMBER: AR20190004826 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), dated 7 March 2019 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, in effect, he was informed that after six months his separation authority would be changed from Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13 and his character of service would be changed to honorable, which would make him eligible for all benefits. He was not told he would need to file an application for the change and he assumed it was automatic. He was also not informed that he could reenlist after a 6-month period. He believes he lost out on so many opportunities due to misunderstandings. 3. The applicant enlisted in the Regular Army on 22 October 1982. He completed training as a light weapons infantryman. 4. The applicant accepted nonjudicial punishment (NJP) on 28 October 1983, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for leaving his place of duty on or about 27 October 1983. 5. The applicant accepted NJP on 7 December 1983, under the provisions of Article 15 of the UCMJ, for willfully disobeying a lawful order on or about 25 November 1983. 6. The applicant was counseled on at least eleven separate occasions for substandard performance and for the following offenses: * dishonored checks * personal problems * being late for formation * military bearing and personal conduct * lack of improvement in job performance * going on sick call or on sick call states and not going to the aid station * taking pride in his dress and grooming 7. The applicant was barred from reenlistment on 2 April 1984. The approval authority noted that the applicant would be separated from the service upon completion of his "current" term of service unless the bar was removed, and that he may be considered for separation prior to the expiration of his term of service under appropriate regulation. 8. The applicant's commander notified the applicant on 10 April 1984 that he was initiating actions to separate him under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance. The applicant acknowledged receipt of the notification on 13 April 1984. He acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He acknowledged that if he received a discharge certificate/character of service that was less than honorable, he may make application to the Army Discharge Review Board or the ABCMR for upgrading; however, he realized that act of consideration by either board did not imply that his discharge would be upgraded. The applicant elected not to submit a statement in his own behalf. 9. The applicant accepted NJP on 13 April 1984, under the provisions of Article 15 of the UCMJ, for being absent without leave from on or about 9 April until on or about 10 April 1984. 10. The applicant's commander formally recommended his separation from service on 16 April 1984, under the provisions of Army Regulation 635-200, Chapter 13, by reason of unsatisfactory performance. The separation authority approved the recommendation for discharge and directed the issuance of a General Discharge Certificate. 11. The applicant was discharged on 16 May 1984, under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms his service was characterized as under honorable conditions (general). 12. Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. 13. The Board should consider the applicant's provided statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement and desire for additional benefits, his record of service, the frequency and nature of his misconduct, the bar from reenlistment and whether to apply clemency. The Board found no in- service mitigating factors for the misconduct and the applicant provided none; the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received at separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found 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 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 basic authority for the separation 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 of this regulation 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. There has never been any provision for an automatic upgrade of a discharge less than fully honorable. 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. ABCMR Record of Proceedings (cont) AR20190004826 4 1