IN THE CASE OF: 

BOARD DATE:  25 September 2020

DOCKET NUMBER:  AR20200001160


APPLICANT REQUESTS:  The applicant requests correction of his characterization of 
service to show as general under honorable conditions.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 293 (Application for the Review of Discharge or Dismissal) in lieu of 
DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 he is requesting an upgrade for Department of Veterans Affairs 
(VA) benefits.

3.  On 5 October 1982, the applicant enlisted in the Regular Army for a term of 3 years, 
at the age of 23 years old. 

4.  After his enlistment, he was assigned to Fort Sill, OK, for one station unit training 
(OSUT) in the military occupational specialty (MOS) 13B (Cannon Crewman). 

      a.  His record contains seven counseling statements from the period 17 October 
1982 to 10 January 1983 for, but not limited to, failing to perform his duties as fireguard, 
after being awakened to do so; refusing to train on the M109A3 Howitzer; failing to obey 
a lawful order to attend training; and failing to adjust socially and emotionally to the 
military.  

      b.  The General Counseling Form dated 10 January 1983 shows the applicant was 
counseled by the Command Sergeant Major (CSM).  He stated the applicant had an 
overwhelming desire to get out of the Army to the point he refused to continue to train.  
The CSM recommended separation per the Trainee Discharge Program.

5.  On 10 January 1983: 

      a.  The applicant accepted nonjudicial punishment (NJP) for failing to obey a lawful 
order from his superior commissioned officer to report to training on 6 January 1983.  
The punishment imposed:  forfeiture of $133.00, 14 days extra duty, and 14 days 
restriction.

      b.  His immediate commander notified him that he was initiating actions against him 
to release him from active duty for transfer to the Individual Ready Reserve under the 
provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted 
Personnel), Chapter 11 (Entry Level Performance and Conduct).  The reasons for his 
proposed action were that he had not displayed the proper attitude for a Soldier in the 
Army.  He refused to obey a lawful order to report to training and after extensive 
counseling by his Senior Drill Sergeant and First Sergeant he refused to obey a direct 
order from the Battery Commander to report to training.  The applicant displayed an 
extremely immature attitude and behavior and refused to take responsibility for his life.

      c.  The applicant acknowledged he had been notified of the pending separation 
action against him and the bases for the contemplated action.  He elected not to submit 
a statement in his own behalf and indicated that he did not desire a separation medical 
examination.

6.  On 12 January 1983, the separation authority approved the separation and directed 
the applicant be released from active duty for training with the issuance of an entry-level 
separation and transferred to the Individual Ready Reserve. 

7.  On 18 January 1983, the applicant was released from active duty (REFRAD) under 
AR 635-200, Chapter 11 with the narrative reason entry-level status performance and 
conduct.  He received an uncharacterized character of service.  He completed 3 months 
and 13 days of his 3-year contractual obligation.  His DD Form 214 shows he was not 
awarded an MOS.

8.  AR 635-200 states separation under Chapter 11 applied to Soldiers who were in an 
entry-level status (i.e., had completed no more than 180 days of continuous active duty 
before the date of the initiation of separation action) who could not meet the minimum 
standards for completion of training.  An uncharacterized description of service was 
required for separation under this chapter.  

9.  In reaching its determination, the Board can consider the applicant's petition and his 
service record in light of the published Department of Defense guidance on equity, 
injustice, or clemency.


BOARD DISCUSSION:

The Board carefully considered the applicant's request, supporting documents, 
evidence in the records, and published Department of Defense 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 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. 
Because the applicant was an entry-level Soldier, his service was uncharacterized as 
required by the governing regulation.  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

: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 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 635-200 (Personnel Separations - Enlisted Personnel), in effect at 
the time, set forth the basic authority for the separation of enlisted personnel.

     a.  An honorable discharge was a separation with honor and entitles the recipient to 
benefits provided by law.  Issuance of an honorable discharge certificate was 
appropriate when the quality of the Soldier's service generally met the standards of 
acceptable conduct and performance of duty, or was otherwise so meritorious that any 
other characterization would clearly be 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.  (Uncharacterized Separations).  A separation was deemed entry-level status 
when commanders initiated the action while the Soldier was within the first 180 days of 
continuous active duty.  Soldiers separated in an entry-level status were issued an 
uncharacterized character of service.  On a case-by-case basis, and when clearly 
warranted due to unusual circumstances involving personal conduct or duty 
performance, the Secretary of the Army could grant a Soldier an honorable character of 
service.  An honorable characterization is authorized when the member is separated by 
reason of selected changes in service obligation, convenience of the Government, or 
Secretarial Authority.

     d.  Chapter 11 (Entry Level Status Performance and Conduct) provided for the 
separation of personnel due to unsatisfactory performance or conduct, or both, while in 
an entry-level status (had completed no more than 180 days of continuous active duty 
before the date of the initiation of separation action).  An uncharacterized description of 
service was required for separation under this chapter.  This provision applied to 
individuals who could not meet the minimum standards prescribed for successful 
completion of training and who had demonstrated they were not qualified for retention 
because they: 

*	could not adapt socially or emotionally to military life
*	lacked the aptitude, ability, motivation, or self discipline for military service
*	demonstrated characteristics not compatible with satisfactory continued 
service

     e.  Paragraph 5-3 states, in pertinent part, that the separation of enlisted personnel is 
the prerogative of the Secretary of the Army and will be effected only by his authority.  
Except as delegated by these regulations or by special Department of the Army 
directives, the discharge or release of any enlisted member of the Army for the 
convenience of the Government will be at the Secretary’s discretion and with the type of 
discharge as determined by him.  Such authority may be given either in an individual 
case or by an order applicable to all cases specified in such orders.  

2.  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.  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.  

     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 based on 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.  

     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)	 AR20200001160


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont)	 AR20200001160


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ABCMR Record of Proceedings (cont)	AR20200001160


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