IN THE CASE OF: BOARD DATE: 3 December 2019 DOCKET NUMBER: AR20190011538 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20130017251, on 29 May 2014. Specifically, he 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 8 August 2019 * Letters of Commendation, dated 17 August 1982 and 23 August 1982 * Certificate of Achievement, dated 24 September 1982 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR, on 29 May 2014. 2. The applicant submitted new evidence with this application that was not considered by the Board during its initial consideration. Therefore, it warrants consideration at this time. 3. The applicant states, in effect, that the actions leading to his general discharge were made by a 19 year old young man. He did not realize at the time the mistakes he was making during his time of service. He was deployed to a foreign country and behaved irresponsibly after being there for several months. He has been discharged for well over 25 years and acknowledges his mistakes and the choices he made. He is now a federal employee and wishes to have his general discharge upgraded to an honorable discharge. 4. The applicant enlisted in the Regular Army on 23 June 1981. 5. The applicant received 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: * on 14 March 1983, for failing to go at the time prescribed to his appointed place of duty, on or about 7 March 1983 * on 13 May 1983, for without authority, failing to go appointed place of duty, on or about 11 May 1983 * on 28 May 1983, for breaking restriction and absenting himself from his unit, on or about 21 May 1983 * 22 June 1983, for breaking restriction and absenting himself from his unit, on or about 21 June 1983, and for failing to be at his appointed place of duty, on or about 22 June 1983 6. The applicant was formally counseled on 16 February and 17 February 1983 for being late to his place of duty. The applicant stated he had a dental procedure that caused an adverse reaction. The next morning he was still suffering with the side effects and was unable to get out of bed. 7. The applicant underwent a mental status evaluation on 19 May 1983. The DA Form 3822-R (Report of Mental Status Evaluation) shows he had normal behavior, was fully alert and oriented, and had clear thought process and normal thought content. The evaluating physician determine he had the mental capacity to understand and participate in any administrative proceedings and he was cleared for any administrative action deemed appropriate by his Command. 8. The applicant's immediate commander notified the applicant on 7 June 1983 of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, by reason of unsatisfactory performance. 9. The applicant acknowledged receipt of the proposed separation memorandum on 7 June 1983. He consulted with legal counsel on 14 June 1983 and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effects of a waiver of his rights. He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event an under honorable conditions (general) discharge was issued to him. The applicant elected to make a statement in his own behalf, in which he noted that he feels that he deserves an honorable discharge based on his achievements and conduct from his previous units. 10. The applicant's immediate commander formally recommended, on 16 June 1983, the applicant's separation from service under the provisions of Army Regulation 635- 200, Chapter13, by reason of unsatisfactory performance. 11. The separation authority approved the applicant's discharge on 20 June 1983, under the provisions of Army Regulation 635-200, Chapter 13, and directed that the applicant be returned to the continental U.S. for separation and that he be discharged with a DD Form 257A (General Discharge Certificate). 12. The applicant was discharged on 5 July 1983. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, Chapter 13. His DD Form 214 confirms his service was characterized as under honorable conditions (general). 13. The applicant petitioned the ABCMR for an upgrade to his service characterization. The ABCMR considered his request on 29 May 2014, determined he was properly discharged, and denied his request for relief. 14. The Board should consider the applicant's request 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, regulatory requirements, 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, and the character and reason for his separation. The Board noted the facts presented above. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was no post-service evidence to justify a clemency determination. The Board found the character of service general under honorable conditions equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 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. REFERENCES: 1. Title 10, U.S. Code, 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 administrative 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. Paragraph 3-7b provides that an under honorable conditions (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. c. Chapter 13, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts. This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190011538 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190011538 5 ABCMR Record of Proceedings (cont) AR20190011538 4