ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 August 2019 DOCKET NUMBER: AR20190007702 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 17 April 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 is requesting a discharge upgrade due to his age at the time of his discharge. He was discharged for fighting, not for doing his job as a Soldier. He desires to have his grand kids say he served his county honorably. 3. The applicant enlisted in the Regular Army on 15 July 1981. 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 dates for the indicated offenses: a. On 11 January 1982, for assaulting a fellow Soldier with intent to inflect grievous bodily harm, on or about 26 December 1981. b. On 1 April 1982, for disobeying a lawful order on two separate occasions, on or about 24 February 1982 and on or about 29 March 1982. c. On 17 June 1982, for engaging in a breach of the peace, in Germany, by getting into a fist fight with another Soldier and for using provoking language toward another Soldier and being disorderly, on or about 20 May 1982. 5. The applicant underwent a mental status evaluation on 30 June 1982. The DA Form 3822-R (Report of Mental Status Evaluation) shows he received a command directed mental status evaluation. He had no significant mental illness, was mentally responsible, and had the mental capacity to understand and participate in board proceedings. The Standard Form (SF) 88 (Report of Medical Examination) shows he was evaluated and found qualified for an administrative separation on 13 July 1982. 6. The applicant’s immediate commander notified the applicant on 2 August 1982 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 and receipt of the pending separation memorandum on 2 August 1982. He subsequently consulted with counsel 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 requested representation by counsel; and was not entitled to have his case considered by a board of officers since he had less than six years total active and/or reserve military service at the time his separation was recommended for unsuitability. He elected to make the following statements, in his own behalf: On the counseling, I was not aware of being informally counselled by 1SG X_ on 26 April 82, SP4 X_ as reference to the guard duty, nor CPT X_ on 1 April 1982. In a period of nine months, I was allegedly counselled six times for derogatory reasons. I do not want to be discharged from the US Army. I joined the service in July 1981 for the period of three years and I want to serve my time. I request a rehabilitative transfer IAW paragraph 13-7, AR 635-200. 8. The applicant's immediate commander formally recommended his separation from service on 2 August 1982, under the provisions of Army Regulation 635-200, Chapter 13, for unsuitability. The commander noted the applicant’s lack of apathy or the appropriate interest, defective attitude, and the inability to expend effort constructively. His commander also noted that he been counseled on at least 6 occasions and stated: SM has a substandard attitude, poor job performance, lack of self-discipline, lack of motivation and a total disregard for the directives set forth by his supervisors. His attitude toward the other members in his unit is something that will not be tolerated by this command. SM lacks potential for effective service in the armed forces and should be discharged. 9. The applicant’s intermediate commander recommended his elimination on 4 August 1982, under the provisions of Army Regulation 635-200, Chapter 13. He recommend a waiver of rehabilitation requirements, and that the [applicant] not be transferred to the Individual Ready Reserve. 10. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 9 August 1982, under the provision of Army Regulation 635-200, Chapter 13, and directed he receive a DD Form 257A (General Discharge Certificate). 11. The applicant was discharged on 16 August 1982, under the provisions of Army Regulation 635-200, paragraph 13-4c, and his service was characterized as under honorable conditions. His DD Form 214 shows in: * Item 12c (Net Active Service this Period), he was credited with completing, 1 year, 1 month, and 2 days of active service * Item 24 (Character of Service), "UNDER HONORABLE CONDITIONS" * Item 28 (Narrative Reason for Separation), "Unsuitability-apathy, defective attitude or inability to expend effort constructively" 12. The applicant’s service record show that he fraudulently enlisted in the U.S. Army Reserve on 27 June 1985 and was discharged on 18 March 1988. 13. In reaching its determination, the Board should consider the applicant's provided evidence and post-service accomplishments 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, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found no mitigating factors for his misconduct and the applicant provided none. The Board found 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 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. X CHAIRPERSON 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 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. It provided that: 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. An individual separated because of unsuitability was furnished an honorable or general discharge 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.