IN THE CASE OF: BOARD DATE: 1 February 2021 DOCKET NUMBER: AR20200009509 APPLICANT REQUESTS: an upgrade of his general under honorable conditions discharge to honorable. 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) * Statement of service FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, 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 is an American who volunteered. He would feel so much better about himself, and he would love to hold his head high at veteran day parades. If he could do one thing over in his life it would be to volunteer and complete his duty. He regrets not being 100% at all times. It weighs heavy on him that he did not fight harder to stay and finish his contract. He apologizes whole heartedly and is proud of his country. He did get two letters of praise while on duty. He finished basic training and did his advanced individual training schooling to work in the motor pool. He was very proud to be a Soldier he was just young at 18 years old. 3. The applicant provides a statement of service that shows he entered active duty on 14 September 1982 and was released from active duty on 25 May 1984 with an under honorable conditions character of service. 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 14 September 1982. He held military occupational specialty 63B (Light Wheeled Vehicle/Power Generator Mechanic). b. On 26 April 1984, he received a letter of reprimand for being cited for fictitious plates by the military police on 20 April 1984. The facts and circumstances surrounding the alleged act of misconduct on his part was that he contended that he lent one of his license plates to another service member in order to conceal the fact that his Ford LTD was not registered in the state of New Jersey. He acknowledged the letter and did not make a statement. c. On 30 April 1984, a report of mental status evaluation was administered due to consideration for discharge. It was determined he had the mental capacity to understand and participate in the proceedings. d. On 9 May 1984, his commander notified him of his intent to separate him from the Army under the provisions (UP) of chapter 13, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), for unsatisfactory performance. He acknowledge receipt of the notification. e. On 9 May 1984, he consulted with counsel of the basis for the contemplated action to accomplish separation for unsatisfactory performance UP of paragraph 13-2, chapter 13, AR 635-200, and its effects on the rights available to him; and the effect of any action taken by him in waiving his rights. He understood: * that he will have less than six years of total active and/or reserve military service at the time of separation; therefore, he is not entitled to have his case heard by a board of officers * he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him * he will be ineligible to apply for enlistment in the United States Army for a period of two years after discharge f. On 10 May 1984, his immediate commander recommended the applicant be discharged from the service with an under honorable conditions character of service. The specific reason was that he failed to perform his duties in a satisfactory manner. He had a record of substandard performance. He was administered non-judicial punishment on 27 March 1984 for 350-1 violation, he received a letter of reprimand for fictitious plates, two post traffic violations, not meeting AR 600-9 (Army Weight Control Program) standards, and he has been counseled for not maintaining his area clean and military bearing. g. On 15 May 1984, the separation authority approved the separation action UP of AR 635-200, paragraph 13-2. He directed that the applicant be issued General Discharge Certificate with under honorable condition characterization of service. h. Accordingly, he was discharged on 25 May 1984. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under honorable conditions for unsatisfactory performance UP of AR 635-200, chapter 13. He completed 1 year, 8 months, and 12 days of active service. He was awarded or authorized the Army Service Ribbon and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16). 5. There is no evidence the applicant applied to the Army Discharge Review Board for review of his discharge within the board’s 15-year statute of limitations. 6. By regulation, AR 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel. Paragraph 13-2 states Commanders will separate a member for unsatisfactory performance. 7. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 reason for his separation and whether to apply clemency. a. A majority of the Board noted the applicant's performance was unsatisfactory. He had a record of substandard performance, he received NJP, he received a letter of reprimand for fictitious plates, two post traffic violations, he did not meet weight control standards, and he was counseled for not maintaining his area clean and military bearing. His service may have warranted a general discharge but it certainly did not rise to the level required for an honorable discharge. b. The member in the minority found the applicant's infractions were administrative and not of a serious nature. He completed 1 year, 8 months, and 12 days, and appears to not have been provided rehabilitation efforts. The member in the minority voted to upgrade the applicant's discharge to honorable. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 13 (Separation for Unsatisfactory Performance) of the regulation in effect at the time states member may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. a. Paragraph 3-7a states an honorable discharge is a separation with honor: 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 13-2 states Commanders will separate a member for unsatisfactory performance when it is clearly established that: (1) In the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. (2) The seriousness of the circumstances is such that the member's retention would have an adverse impact on military discipline, good order, and morale. (3) It is likely that the member will be a disruptive influence in present or future duty assignments. (4) It is likely that the circumstances forming the basis for initiation of separation proceedings will continue or recur. (5) The ability of the member to perform duties effectively in the future, including potential for advancement or leadership, is unlikely. (6) Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. 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. 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. 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. 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) AR20200009509 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1