ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  10 September 2019

	DOCKET NUMBER:  AR20190008367


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)

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 was wrongfully discharged for unsatisfactory service; he 
contends he has never been unsatisfactory at anything in his life.  He further contends 
none of provisions of the Uniform Code of Military Justice (UCMJ) were complied with 
[during his separation processing].

3.  The applicant enlisted in the Regular Army on 11 June 1981.

4.  The applicant was notified, on 6 November 1981, of his disqualification from the 
Personnel Reliability Program, under the provisions of Army Regulation 50-5 (Nuclear 
Surety Program), by reason of "aberrant behavior which in the judgement of the 
commander is prejudicial to reliable performance of duties in a nuclear duty position."  
The record does not identify what the disqualifying behavior was.

5.  The applicant received nonjudicial punishment (NJP), under the provisions of  
Article 15 of the UCMJ, on the following dates for the indicated offenses:

*	on 12 October 1982, for failing to obey a lawful order by wrongfully transferring 
U.S. Army Europe (USAREUR) license plates, on or about 19 September 1982
*	on 13 May 1983, for illegally using marijuana, on or about the month of April 
1983

6.  The applicant's unit commander notified the applicant, on 23 May 1983, of his 
recommendation to discharge him under the provisions of Army Regulation 635-200 
(Personnel Separations – Enlisted Personnel), paragraph 13-2, by reason of 
unsatisfactory performance.

7.  The applicant consulted with legal counsel on 27 May 1983.

	a.  He was advised of the basis for the contemplated discharge, the possible effects 
of an under honorable conditions discharge, and the procedures and rights that were 
available to him.  

	b.  Subsequent to receiving legal counsel, the applicant acknowledged the proposed 
discharge.  He acknowledged he understood that if he was discharged with a general 
discharge he could be deprived of some or all Army benefits, he could be ineligible for 
many or all benefits administered by the Veterans Administration, and that he could 
expect to encounter substantial prejudice in civilian life if he received a general 
discharge.  

	c.  He was advised he could submit any statements he desired in his own behalf.  
His request for discharge indicates he intended to submit a statement; however, he 
subsequently waived this right. 

8.  The separation authority's approval of the discharge recommendation is not of 
record.

9.  The applicant was discharged on 15 July 1983, under the provisions of Army 
Regulation 635-200, Chapter 13, by reason of unsatisfactory performance.  His  
DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms his 
service was characterized as under honorable conditions (general).  

10.  The applicant has not provided and the record does not show that any separation 
procedures were not complied with during the applicant's separation processing.  The 
applicant was disqualified for nuclear duty early in his period of service for aberrant 
behavior.  He subsequently received NJP on two occasions.  The record shows he 
consulted with counsel prior to separation.

11.  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 
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 creditable service, no wartime service 
and insufficient evidence of mitigating circumstances for his unsatisfactory performance. 
Neither did the Board find sufficient evidence of post-service honorable conduct that 
might have mitigated the discharge characterization.  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.

?
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.  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. A characterization of under 
honorable conditions may be issued only when the reason for the Soldier’s separation 
specifically allows such characterization.

   c.  Paragraph 13-2 provides that commanders will separate a Soldier for 
unsatisfactory performance when it is clearly established that:
 
*	in the commander's judgment, the Soldier will not develop sufficiently to 
participate satisfactorily in further training and/or become a satisfactory 
Soldier 
*	the seriousness of the circumstances is such that the Soldier's retention will 
have an adverse impact on military discipline, good order, and morale 
*	the Soldier will likely be a disruptive influence in duty assignments 
*	the circumstances forming the basis for initiation of separation proceedings 
will likely continue or recur
*	the Soldier's ability to perform duties effectively is unlikely
*	the Soldier's potential for advancement or leadership is unlikely

4.  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)	 AR20190008367
	
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