IN THE CASE OF: BOARD DATE: 21 August 2020 DOCKET NUMBER: AR20190015687 APPLICANT REQUESTS: The applicant requests, in effect, reconsideration of his previous request to upgrade his discharge to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130010069 on 27 March 2014. 2. The applicant states his discharge should be Chapter 13 under honorable conditions. His discharge was never changed. It was specifically told to him it would be a Chapter 13 under honorable conditions. 3. On 6 November 1979, the applicant enlisted in the Regular Army. He successfully completed training requirements and was awarded military occupational specialty 12B (Combat Engineer). 4. On 23 February 1980, he was assigned to Company B, 326th Engineer Battalion, 101st Airborne Division (Air Assault), Fort Campbell, KY. 5. The applicant’s record contained documents that show: a. He accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates for the reasons specified: * 6 January 1981 - for sleeping while performing charge of quarters duty * 6 April 1981 - for failing to be at his appointed place of duty * 1 September 1981 - for failing to be at his appointed place of duty * 24 November 1981 - for being disrespectful toward a commissioned officer b. He was counseled on the following dates for the reasons specified: * 24 May 1981 - for not wearing rank on his uniform * 3 July 1981 - for his appearance * 6 July 1981 - for failing to report to Air Assault School * 15 July 1981 - for reporting late to morning formation * 7 November 1981 - for reporting late to formation and poor attitude * 11 November 1981 - for reporting late to morning formation and poor attitude * 28 May 1982 - for not wearing rank on his uniform * 8 June 1982 - for not brushing his boots for formation inspection 6. On 11 June 1982, the applicant's commander recommended his elimination from military service for unsuitability under the provisions of Army Regulation 635-200, chapter 13. The reasons cited by the commander were the applicant's receipt of four Article 15's, counseling on numerous occasions, and placement on special duty in the mess hall. a. On 23 June 1982, the applicant underwent a mental status evaluation for discharge because of unsuitability. The military psychiatrist determined the applicant had the mental capacity to understand and participate in the proceedings; was mentally responsible; met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3; and was cleared for any administrative action deemed appropriate by the command. b. He was advised by consulting counsel of the basis for the contemplated separation action. The applicant was advised of the impact of the discharge action. The applicant acknowledged he was advised that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13. The applicant requested counsel and elected to submit a statement in his own behalf. His statement is unavailable. c. On 15 July 1982, the appropriate authority approved the applicant's separation for unsuitability, waived the rehabilitative transfer requirement, and directed his discharge under honorable conditions in accordance with Army Regulation 635-200, chapter 13. d. On 26 July 1982, the applicant was released from active duty under honorable conditions in accordance with Army Regulation 635-200, paragraph 13-4c(1), by reason of “unsuitability – apathy, defective attitude or inability to expend effort constructively”. He was transferred to the United States Army Reserve Control Group (Annual Training) He completed 2 years, 8 months, and 21 days of creditable active service with no lost time. 7. Army Regulation 635-200, Chapter 13, in effect at the time, provided that a member would be separated when it was determined that he or she was unqualified for further military service because of unsuitability. Commanders would separate a Soldier for unsuitability when it was clearly established that, in the commander's judgment, the Soldier would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. 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. 8. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement (circumstances regarding the period of AWOL), his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors 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 upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20130010069, dated 27 March 2014. 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. Army Regulation 15-185 (ABCMR), the regulation that governs and prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 13 in effect at the time provided that a member would be separated when it was determined that he or she was unqualified for further military service because of unsuitability. Commanders would separate a Soldier for unsuitability when it was clearly established that, in the commander's judgment, the Soldier would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. b. The regulation 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. 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 (BCM/NRs) 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 type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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, BCM/NRs 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. 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) AR20190015687 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190015687 5 ABCMR Record of Proceedings (cont) AR20190015687 4