IN THE CASE OF: BOARD DATE: 27 April 2022 DOCKET NUMBER: AR20210015202 APPLICANT REQUESTS: his under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 served with dignity and honor on active duty. He is currently going through family problems and health issues. 3. The applicant enlisted in the Regular Army for 3 years on 19 June 1980. 4. A DA Form 4394-R (Commander's Report of Inquiry/Unauthorized Absence) states that the applicant had been at the command for only a short period and there was evidence of him wanting to go absent without leave (AWOL). 5. A DA Form 2496 (Disposition Form) was completed by the applicant's company commander (CC) on 30 May 1981. It shows that the applicant was found to be in possession of marijuana and a pipe containing marijuana residue. 6. The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice on the following dates for the indicated offenses: * 12 May 1981, for being AWOL from on or about 0001 hours 15 March 1981 until on or about 1530 hours 6 April 1981 * 6 June 1984, for on or about 30 May 1981 violation of a lawful regulation, being in an off-limits area * 24 June 1981, for on or about 22 June 1981, disobeying a lawful order from a superior noncommissioned officer by having alcohol on board; and on or about 30 May 1981 possession of a smoking device contacting marijuana residue 7. On a 14 July 1981 Notification of Pending Expeditious Discharge (EDP) and Acknowledgement, the applicant's CC stated the applicant's rebellious attitude toward superiors and unwillingness to fulfill his military duty on a continuous basis are totally unsatisfactory for further military service. This form of behavior would untimely result in court-martial charges being brought against him. However, it was the CC's opinion that his problems lie in immaturity and as such he should be eliminated from the service prior to this type of action is taken. The form also sets forth the applicant's rights and options. 8. The applicant's CC formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, paragraph 5-31. 9. A Characterization of Service Check List shows: * the applicant was advanced to private 2 on 1 March 1981 and reduced to private 1 on 6 June 1981 * he had three NJPs * his conduct and efficiency evaluations were unsatisfactory * he had been informally counselled on numerous occasions due to his lack of ability and attitude to the accomplishment of his mission in the mortar platoon and as the supply driver * he had shown no improvement in the least to better himself or to perform any job assigned. 10. The separation authority approved the recommended discharge on 14 July 1981 and directed that the applicant issued a General Discharge Certificate. 11. The applicant was discharged on 12 August 1981, under the provisions of Army Regulation 635-200, paragraph 5-31. The DD Form 214 he was issued shows: * he was discharged in the lowest enlisted grade * he had 11 months and 3 days of active duty service * his service was characterized as under honorable conditions * he had 21 days of lost time * his awards are shown as the Army Service Ribbon and the Expert Marksman Badge with Hand Grenade bar 12. The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition. 13. The Board should consider the applicant's statement and his overall military service 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 record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency consideration for requesting upgrade of discharge characterization of service. Upon review of the applicants petition and available military records the Board found insufficient evidence of in-service mitigation to overcome the misconduct. He was discharged for failure to maintain acceptable standard for retention (EDP) and was provided an under honorable conditions (General) characterization of service. The applicant provided no post-service achievements or character letters of support to weigh a clemency determination. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. Based on this, the Board denied relief. 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. ADMINISTRATIVE NOTE(S): Not applicable REFERENCES: 1. Title 10, U.S. Code (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. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. Chapter 5 (Separation for Convenience of the Government) states unless the reason for separation requires a specific characterization, a Soldier being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status. d. Paragraph 5-37, as then in effect, provided for separation under the Expeditious Discharge Program (EDP). This program provided that an individual who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that he could not or would not meet acceptable standards could be separated. Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to consult with legal counsel. 4. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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 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.) AR20210015202 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1