IN THE CASE OF:  

		BOARD DATE:  21 June 2023

		DOCKET NUMBER:  AR20220010969


APPLICANT REQUESTS:  An upgrade of his under honorable conditions (general) 
discharge to an honorable discharge. 

APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD:  

DD Form 149 (Application for Correction of Military Record)

FACTS:  

1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. 
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 his commander said his discharge would be automatically 
upgraded to honorable six months after his separation. 

3.  On 25 October 1983, the applicant enlisted in the Regular Army with a 4-year service 
obligation. Upon completion of his initial entry training and award of military 
occupational specialty 63B (Light Wheel Vehicle/Generator Mechanic), he was assigned 
to Fort Bragg, NC, briefly before transferring to Alaska on 23 July 1985. 

4.  The applicant was counseled between 24 September 1985 and 20 April 1987, by his 
chain of command on at least 20 separate occasions for offenses, including the 
following: 

*	being late, failing to report after an emergency alert, and missing formations on 
numerous occasions
*	multiple instances of disrespect towards noncommissioned officers (NCO)
*	failure to repair and unsatisfactory duty performance
*	failing to return to his appointed place of duty and failing to follow orders
*	failing the Army Physical Fitness Test (APFT) on 15 July 1986; being placed on 
remedial physical training on 23 July 1986, and failing the APFT on 9 April 1987

5.  On 22 April 1987, the applicant accepted non-judicial punishment (NJP), under the 
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go 
to his appointed place of duty at the time prescribed on or about 20 April 1987. His 
punishment included reduction to E-3, forfeiture of $100.00, extra duty and restriction for 
14 days (all suspended until 29 July 87). 

6.  On 29 June 1987, his previously suspended reduction to E-3 and forfeiture of $100 
was imposed due to him willfully disobeying a lawful order from his First Sergeant to go 
take an APFT on or about 26 June 1987. 

7.  On 3 August 1987, the applicant accepted NJP, under the provisions of Article 15 of 
the UCMJ, for failing to go to his appointed place of duty at the time prescribed on or 
about 20 July 1987. His punishment included reduction to E-2 and 10 days of extra 
duty. 

8.  On 7 August 1987, the applicant's commander notified the applicant of his intent to 
initiate separation actions against him under the provisions of Army Regulation 635-200 
(Personnel Separations – Enlisted Personnel), Chapter 13, for unsatisfactory 
performance. He indicated the applicant had numerous derogatory counseling and he 
recommended a general characterization of service. 

9.  On 19 August 1987, the applicant underwent a mental status examination. He had 
no significant mental illness and had the mental capacity to understand and participate 
in board proceedings. 

10.  On 26 August 1987, the applicant consulted with counsel and was advised of the 
basis for the contemplated actions to separate him, of the rights available to him, and 
the effect of any action taken to waive those rights. He also acknowledged that he could 
submit an application to the Army Discharge Review Board or the ABCMR for an 
upgrade; however, consideration by either board did not imply that his discharge would 
be upgraded. He elected not to submit a statement in his own behalf. 

11.  The commander formally recommended the applicant's separation for 
unsatisfactory performance, on the same date. He felt every attempt had been made to 
develop the applicant into a satisfactory Soldier. He recommended a waiver of 
reassignment requirement because he would be a disruption to any gaining unit. 

12.  On 28 August 1987, the separation authority approved a waiver of further 
rehabilitative efforts, and the recommended separation action. He directed the issuance 
of a General Discharge Certificate. 

13.  On 11 September 1987, the applicant was discharged accordingly. His 
DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was 
discharged under the provisions of Army Regulation 635-200, Chapter 13, for 
unsatisfactory performance. His service was characterized as under honorable 
conditions (general), and he was credited with completing 3 years, 10 months, and 
17 days of net active service. 

14.  There is not now nor has there ever been any provision in law or regulation that 
allowed for automatic upgrade of any less than honorable discharge based solely on a 
period of lapsed time. This myth is based on prior regulations that precluded an 
applicant from applying for a discharge review for a given period post discharge.

15.  In reaching its determination, the Board can consider the applicant’s petition, 
arguments and assertions, and service record in accordance with the published equity, 
injustice, or clemency guidance. 


BOARD DISCUSSION:  

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that relief was not warranted. The Board 
carefully considered counsel’s statement, 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 determinations requests for upgrade of his characterization of 
service. Upon review of the applicant’s petition and available military records, the Board 
determined there was insufficient evidence of in-service mitigation to overcome the 
misconduct, based on the applicant’s numerous patterns of misconduct. The Board 
noted during the applicant’s 3 years of active service, he was counseled over 20 times 
for misconduct and failure to adhere to military standards. It was also noted by the 
Board, the applicant provided no post service achievements or character letters of 
reference for the Board to weigh in consideration of a clemency determination.

2.  The Board determined the applicant was discharged for unsatisfactory performance 
and was provided an under honorable conditions (General) characterization of service. 
Furthermore, the Board determined 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 
determined relief was not warranted and 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.


REFERENCES:  

1.  Title 10, U.S. 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 ABCMR determines it would be in 
the interest of justice to do so. 

2.  Army Regulation 635-200 sets forth the requirements and procedures for 
administrative discharge 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.  Chapter 13 provides for separation due to unsatisfactory performance when in 
the commander’s judgment the individual will not become a satisfactory Soldier; 
retention will have an adverse impact on military discipline, good order and morale; the 
service member will be a disruptive influence in the future; the basis for separation will 
continue or recur; and/or the ability of the service member to perform effectively in the 
future, including potential for advancement or leadership, is unlikely. 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 Service Boards for Correction 
of Military/Naval Records (BCM/NR) 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 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. 

   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)	AR20220010969


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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