IN THE CASE OF: BOARD DATE: 28 October 2021 DOCKET NUMBER: AR20210010741 APPLICANT REQUESTS: In effect, that his under honorable conditions (general) discharge be upgraded to an honorable discharge and a personal appearance before the Board via video/telephone. In the event his discharge is not upgraded, he requests he be forwarded a new DD Form 257A (General Discharge Certificate). 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 25 January 2021 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 28 July 1982 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), 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 there was no error or injustice during his discharge. He got what he wanted out of the Army, and that was a much needed attitude adjustment. That was one of the reasons he joined, to knock his attitude out, and it was accomplished. He is happy with his general discharge, as it keeps him humble. 3. The applicant enlisted in the Regular Army on 19 September 1979. He served in Panama from 20 October 1981 through 24 July 1982. During his service, he attained the rank/grade of private first class (PFC)/E-3. 4. Before a special court-martial on 17 July 1981, at Fort Lewis, WA, the applicant was found guilty the following offenses: * willfully disobeying a lawful command from his superior commissioned officer, on or about 8 April 1981 * offering violence against his superior commissioned officer by moving towards him in an aggressive and belligerent manner, on or about 8 April 1981 His sentenced included confinement at hard labor for 30 days and reduction to the grade of E-1. The sentence was approved for only so much as provided for 30 days of hard labor without confinement and was ordered duly executed on 19 August 1981. 5. The applicant received non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: a. On 18 January 1982, for being disrespectful in language towards his superior non-commissioned officer (NCO), on or about 22 December 1981; for willfully disobeying a lawful order, on or about 11 December 1981; and for wrongfully appropriating a meal, on or about 23 December 1981. His punishment included a reduction to private E-1 suspended until 13 April 1981. On 12 April 1982 his suspended reduction to E-1 was ordered vacated and dully executed. b. On 20 May 1982, for being disrespectful in language towards his superior NCO, on or about 13 March 1982. 6. The applicant's commander notified the applicant on 25 May 1982 of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, for unsuitability. The commander cited the applicant's inaptitude and apathy; his total lack of discipline, professionalism and good judgement, which had brought discredit and shame upon himself and the organization; his willful abrogation of his duties as a Soldier; and his frequent conflict with military superiors. The applicant acknowledged his commander's intent the same day. 7. The applicant underwent a mental status evaluation on 26 May 1982. The evaluating physician determined he had no significant mental illness; was mentally responsible; able to distinguish right from wrong; able to adhere to the right; had the mental capacity to understand and participate in board proceedings; and met retention standards under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3. 8. The applicant consulted with counsel on 27 May 1982 and was advised of the basis for the contemplated actions to separate him and of the rights available to him. He acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further understood that as a result of issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a Veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. He requested consideration of his case by a board of officers; a personal appearance before a board of officers; and a submitted the following statement in his own behalf on 27 May 1982. I have been in Panama since 23 October 1981. Since my arrival I have been in the same company, same platoon, and same squad. I have had some problems and have received two company grade Article 15s. Basically I have had difficulty adjusting to the intense demands imposed on A Company (Airborne). 193d Infantry Brigade Command Policy 076 indicates that rehabilitative transfers are designed to give Soldiers in grades E-5 and below, who have difficulty adjusting to a particular unit, an opportunity to perform satisfactorily in a new unit. Request I be given such a transfer. I want to stay in the Army and can assure you that I will make the most of an opportunity to improve myself under new leadership. I am confident that an improvement will be noted in my performance after reassignment. 9. The applicant's commander formally recommended his separation from service on 9 June 1982, under the provisions of Army Regulation 635-200, Chapter 13, for unsuitability. The commander noted the applicant was immature, apathetic and recalcitrant; had a total lack of discipline, professionalism and good judgement, which had brought discredit and shame upon him and the organization; and his conduct was totally irresponsible and constituted a complete and willful abrogation of his duties as a Soldier. His commander also noted he had been counseled formally and informally on numerous occasions and he had been assigned to various duties under different supervisors, with the same results. He recommended a waiver of further rehabilitative attempts, as it would be unproductive. 10. The separation authority approved the recommended separation on 14 June 1982, under the provisions of Army Regulation 635-200, Chapter 13, unsuitability. He waived rehabilitative transfer requirements, denied the applicant's request for consideration before a board of officers, and directed the applicant be issued a general discharge. 11. The applicant was discharged on 28 June 1982. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 13-4c, by reason of unsuitability – apathy, defective attitude or inability to expend effort constructively. His service was characterized as under honorable conditions, and he was credited with completing two years, 10 months, and 10 days of net active service. 12. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. 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, 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 the character of service the applicant received upon separation was not in error or unjust. The Board concurs with the action requested in Administrative Note(s) below. 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: Other than the corrections addressed in Administrative Note(s) below, the Board determined 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 otherwise 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. ADMINISTRATIVE NOTE(S): Issue the applicant a new General Discharge Certificate per his request. 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 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 15-185 (ABCMR) 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 applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. The version in effect at the time provided that: a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel. b. Chapter 13 established policy and prescribed procedures for separating Soldiers for unsuitability. Paragraph 13-4c provided, in pertinent part, that an individual would be subject to separation if he or she exhibited behaviors of apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service 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) AR20210010741 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1