ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  6 July 2021 DOCKET NUMBER:  AR20210008013 


APPLICANT REQUESTS:  The applicant requests an upgrade of his general, under honorable conditions 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.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states he was told upon separation his discharge would be upgradedafter a period of time from a review board.  He never checked to see if that happened.He only assumed it did.  His charges were based on his wife in Chicago writing checksand not telling him.  He was also writing checks but she [his wife] had taken money outonce checks went to the bank.

3.On 21 March 1984, the applicant enlisted in the Regular Army for a period of 4years.  He completed training requirements and was awarded his military occupationalspecialty.  He was assigned to Fort Carson, CO on or about 18 July 1984.

4.His record contained notifications of dishonored checks and copies of the dishonoredchecks that show during the period of 31 July to 24 September 1984, he wrote at leastten (10) bad checks.

5.The applicant’s record also shows he was frequently counseled for:

.failing to be at his appointed place of duty on multiple occasions

.being stopped and charged for driving under the influence


.writing bad checks on multiple occasions

.being recommended for non-judicial punishment (NJP) under the provisionsof Article 15 of the Uniform Code of Military Justice (UCMJ)

.being recommended for a bar to reenlistment

.being recommended for chapter 13 (unsatisfactory performance)administrative separation action



6.On 24 September 1984, the applicant received NJP under the provisions of Article15 of the UCMJ for failing to be at his appointed place of duty (crew drill).  Hispunishment consisted of extra duty for 7 days.

7.On 11 October 1984, he was medically cleared for chapter 13 separation action.The applicant was psychiatrically cleared for separation action deemed appropriate byhis chain of command on 15 October 1984.

8.On 25 October 1984, the applicant was notified by his commander that he wasinitiating action to discharge him from the Army, under the provisions of chapter 13(unsatisfactory performance), paragraph 13-2a, Army Regulation (AR) 635-200(Personnel Separations – Enlisted Personnel).

a.The commander cited the reasons for his proposed action were based on theapplicant’s demonstrated pattern of unsatisfactory performance by continuously uttering worthless checks and failing to go to his appointed place of duty.  Counseling had been ineffective.  The commander also informed the applicant of his rights.   

b.Counsel advised the applicant of the basis for his contemplated separation andits effects, the rights available to him, and of the effect of a waiver of his rights.  The applicant elected not to submit statements in his own behalf.   

c.His commander formally recommended approval of the separation action and towaive rehabilitative transfer requirements.  On 31 October 1984, the assistant staff judge advocate indicated the separation action was legally sufficient.     

d.On 8 November 1984, the separation authority approved the applicant’sdischarge and waived rehabilitative requirements.  The separation authority also directed he be issued a General Discharge Certificate.   

9.On 15 November 1984, a Bar to Reenlistment Certificate was approved and imposedagainst the applicant based on his receipt of NJP, negative counseling, letters ofindebtedness, writing bad checks and failing to make restitution.  His commanderstated, in pertinent part, the applicant had shown by his actions that he could notmanage his personal finances.  The applicant continued absenting himself from hisappointed place of duty which showed that he could not abide by the standards set forth
under the UCMJ.  It was in the best interests of the U.S. Army, and the unit that the applicant be barred from reenlistment, and future active service.  The applicant indicated he had been counseled and advised of the basis for this action. 

10.On 26 November 1984, the applicant was discharged from the Army.  The DD Form214 he signed for shows he was discharged under the provisions of AR 635-200,chapter 13, by reason of unsatisfactory performance.  His character of service waslisted as “under honorable conditions (general)”.  The applicant completed 8 monthsand 6 days of net active service.  He was not awarded a personal decoration.

11.The applicant contends he was told upon separation his discharge would beupgraded after a period of time by a review board; nevertheless, there is not now norhas there ever been any provision in law or regulation that allowed for an automaticupgrade of any less than honorable discharge based solely on a period of lapsed timepost-service.  He also contends his wife was the reason for the bad checks; however,he provided no evidence to support his claim.  The evidence shows the applicant wasnotified and counseled on multiple occasions for writing bad checks, and he failed tomake restitution.  His record further shows he received NJP for failing to be at hisappointed place of duty; he was barred from reenlistment; and he was counseled forbeing charged with driving under the influence.

12.Army Regulation 635-200 sets forth the requirements and procedures foradministrative discharge of enlisted personnel.  Chapter 13 of this regulation providesfor separation due to unsatisfactory performance when in the commander’s judgmentthe individual will not become a satisfactory Soldier; retention will have an adverseimpact on military discipline, good order and morale; the service member will be adisruptive influence in the future; the basis for separation will continue or recur; and/orthe ability of the service member to perform effectively in the future, including potentialfor advancement or leadership, is unlikely.  Service of Soldiers separated because ofunsatisfactory performance under this regulation will be characterized as honorable orunder honorable conditions.  The regulation also states:

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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.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.    

13.In reaching its determination, the Board can consider the applicant's petition,service record, and statements in light of the published guidance on equity, injustice, orclemency.


BOARD DISCUSSION: 

The Board carefully considered the applicants 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, the reason for his separation and whether to apply clemency.  The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh 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. 

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 

:XX :XX :XX 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 militaryrecords 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 oflimitations if the ABCMR determines it would be in the interest of justice to do so.
2.Army Regulation 635-200 sets forth the requirements and procedures foradministrative discharge of enlisted personnel.  Chapter 13 of this regulation providesfor separation due to unsatisfactory performance when in the commander’s judgmentthe individual will not become a satisfactory Soldier; retention will have an adverseimpact on military discipline, good order and morale; the service member will be adisruptive influence in the future; the basis for separation will continue or recur; and/orthe ability of the service member to perform effectively in the future, including potentialfor advancement or leadership, is unlikely.  Service of Soldiers separated because ofunsatisfactory performance under this regulation will be characterized as honorable orunder honorable conditions.

3.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records (BCM/NRs) regarding equity, injustice, or clemencydeterminations.

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. 
 
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