ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  17 September 2019

	DOCKET NUMBER:  AR20190009161


APPLICANT REQUESTS:  The applicant requests an upgrade of his general under 
honorable conditions discharge to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  DD 
Form 293 (Application for the Review of Discharge from the Armed Forces of the United 
States) in lieu of 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 that he requests an upgrade so that he could receive all his 
benefits.

3.  On 29 August 1979, at the age of 18 years old, the applicant enlisted in the Regular 
Army for a term of 3 years.

4.  His record shows on 31 October 1980, he accepted nonjudicial punishment (NJP) for 
willfully disobeying his superior noncommissioned officer (NCO) and disrespecting his 
superior NCO in language by saying to him "Stick it in your ear" and "I have nothing to 
say to either you or CPT [B]."

5.  His record contains ten record of counseling/interview forms, counseling the 
applicant during the period 13 March 1980 to 9 February 1981 for, but not limited to:

*	being late to formations
*	being disrespectful to section leaders and showing was not concerned with his 
job responsibilities
*	failing to report to duty
*	failing to be on guard duty at the time prescribed
*	sleeping in a truck when he was supposed to be assisting another Soldier with 
maintenance 

6.  On 19 July 1980 and 30 August 1980, the commander placed the applicant in the 
training program of School of the Soldier because of his failures to report.

7.  On 1 December 1980, he was barred from reenlistment.  The bar to reenlistment 
certificate states the applicant’s duty performance had been below standards.  He was 
constantly counseled on his poor duty performance with no improvement.  He did not 
have a positive attitude in performing his assigned duties as demonstrated by the poor 
results and he had the tendency to show disrespect toward his superiors.  

8.  On 27 April 1981, the applicant’s immediate commander notified the applicant that he 
was initiating separation actions against him under the provisions of Army Regulation 
(AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13 for 
unsuitability.  

      a.  The applicant acknowledged he had been notified of the pending separation 
action against him and he had been advised by counsel of the basis for the 
contemplated action, understood his rights, requested consideration of his case before 
a board of officers, and elected to submit a statement in his own behalf.  The statement 
is not available for review.

      b.  The intermediate commander recommended approval of the recommendation for 
separation.   

      c.  In connection with his administrative separation proceedings the applicant 
underwent a medical status evaluation and the evaluator determined that he was 
psychiatrically cleared for administrative action deemed appropriate by the command.

9.  On 20 May 1981, a board of officers was appointed to determine if the applicant 
should be eliminated for unsuitability.  On 28 May 1981, the applicant was referred to 
the board and acknowledged receipt of the notice to appear before the board.

10.  On 15 June 1981, the board convened and found the applicant’s performance was 
substandard and that constituted grounds for apathy and general misconduct and he 
had ample opportunity to initiate corrective measures with the counseling available to 
him to correct himself before the separation proceedings took place.  The board 
recommended that his rehabilitative transfer be waived and that he be separated with a 
general discharge.

11.  On 9 July 1981, the appropriate commander approved the board’s 
recommendations, directing the applicant be issued a General Discharge Certificate.

12.  On 21 July 1981, the applicant was discharged under the provisions of AR 635-200, 
chapter 13-4c, unsuitability-apathy defective attitude.  His service was characterized as 
under honorable conditions.  He completed 1 year, 10 months, and 23 days of net 
active service this period.  His DD Form 214 (Certificate of Release or Discharge from 
Active Duty) shows he was awarded or authorized the M-16 Rifle and Hand Grenade 
Marksman Marksmanship Qualification Badges.

13.  The applicant states he requests an upgrade so that he could receive all his 
benefits.  His record shows that he enlisted at the age of 18 years old, he accepted one 
NJP, he was counseled on 10 occasions regarding his conduct and performance, and 
he was barred from reenlistment.  He served 1 year, 10 months, and 23 days of his 
3 years contractual obligation.

        a.  AR 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, 
separated Soldiers for unsuitability and paragraph 13-4c, provided 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.  An individual 
separated because of unsuitability will be furnished an honorable or general discharge 
certificate as warranted by his military record.

        b.  The applicant requests an upgrade so that he may receive benefits.  The 
ABCMR does not grant requests for upgrade of discharges solely for the purpose of 
making the applicant eligible for veterans' benefits.

14.  In reaching its determination, the Board can consider the applicant’s petition and 
service record 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, his bar to reenlistment, the reason 
for his separation and whether to apply clemency.  The Board found insufficient 
evidence to mitigate his misconduct and 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.



	  
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.  Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in 
effect at the time, provided for the separation of enlisted personnel from the Regular 
Army.  
   
   a.	An honorable discharge was a separation with honor and entitled the recipient to 
benefits provided by law.  Issuance of an honorable discharge certificate is predicated 
upon proper military behavior and proficient performance of duty during the member's 
current enlistment or period of obligated service with due consideration for the 
member's age, length of service, grade, and general aptitude.
   
   b.	Chapter 13 established policy and prescribed procedures for separating Soldiers 
for unsuitability.  Paragraph 13-4c, provided, in pertinent part, 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 nondisabling illnesses.  The presence of 
a physical or mental disease or defect-producing impairment of function insufficient to 
warrant separation under the provisions of AR 685-40 (Physical Evaluation for 
Retention, Retirement, or Separation) and related regulations is no bar to discharge for 
unsuitability.  An individual separated because of unsuitability will be furnished an 
honorable or general discharge certificate as warranted by his military record.

3.  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 regarding equity, injustice or clemency determinations. 
Clemency generally refers to relief specifically granted from a criminal sentence and 
BCMRs 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 discharge, which may be 
warranted on equity or relief from injustice grounds. 

   a.  The guidance does not mandate relief, but rather provides standards and 
principles to guide Boards in application of their equitable relief authority.
   
   b.  In determining whether to grant relief on the basis of equity, an injustice, or 
clemency grounds, BCMRs shall consider the twelve stated principles in the guidance 
as well as eighteen individual factors related to the applicant.

ABCMR Record of Proceedings (cont)	 AR20190009161

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