IN THE CASE OF: 

		BOARD DATE: 16 June 2023

		DOCKET NUMBER: AR20220011367


APPLICANT REQUESTS:  Upgrade of his under honorable conditions (general) 
discharge.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	DD form 2627 (Record of Proceedings under Article 15, Uniform Code of Military 
Justice (UCMJ))
*	DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 4 
June 1980

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 that correction should have been made in 1980 after his 
discharge. He loves the Army; but when his wife passed, he had to take care of his two 
kids because he had no one else to take care of them. He just wants to clean up his life.

3.  The applicant enlisted in the Regular Army on 12 February 1980, for a period of 3 
years. His record shows he was not awarded a military occupational specialty.

4.  The applicant received developmental counseling on or about:

*	25 February 1980; for horseplaying during formation
*	5 April 1980; for unauthorized smoking in the barracks

5.  On 9 May 1980, the applicant accepted non-judicial punishment under Article 15 of 
the UCMJ, for unlawfully striking a Soldier on the head with his fist, on or about 7 May 
1980. His punishment included forfeiture of $104.00 of pay, and 14 days extra duty and 
restriction.
6.  On 16 May 1980, the applicant underwent a mental status evaluation. He was 
psychiatrically cleared to participate in any administrative action deemed appropriate by 
the command

7.  The applicant received developmental counseling on or about 1 June 1980, for his 
inability to perform to military standards.

8.  The applicant's commander notified him on 2 June 1980, that he was initiating 
actions to separate him under the provisions of Army Regulation 635-200 (Personnel 
Separations – Enlisted Personnel), Chapter 13, paragraph 13-4a, for unsuitability.

9.  The applicant consulted with legal counsel on 3 June 1980, and was advised of the 
basis for the contemplated separation actions and its effects; the rights available to him; 
and the effects of a waiver of his rights. He declined to make a statement in his own 
behalf. He further understood that, as a result of the issuance of a discharge under 
other than honorable conditions, he may 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.

10.  On 4 June 1980, the applicant's commander formally recommended his separation 
from service under the provisions of Army Regulation 635-200, paragraph 13-4, for 
unsuitability. As the specific reasons, his commander cited the applicant's actions and 
his failure to get along with his peers in the platoon, that he was unable to function as 
part of a team.

11.  Consistent with the chain of command's recommendation, the separation authority 
approved the recommended discharge on 18 June 1980, and the issuance of a General 
Discharge Certificate.

12.  The applicant was discharged on 24 June 1980. His DD Form 214 confirms he was 
discharged under the provisions of Army Regulation 635-200, paragraph 13-4c(2), for 
unsuitability-apathy, defective attitude, or inability to expend effort constructively. His 
service was characterized as under honorable conditions (general). He was credited 
with 4 months, and 13 days of net active service this period.

13.  The applicant petitioned the Army Discharge Review Board requesting upgrade of 
his under honorable conditions (general) discharge. On 12 January 1983, the Board 
voted to deny relief and determined that his discharge was proper and equitable.

14.  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:

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 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 upon a preponderance of evidence, the Board determined that the character of 
service the applicant received upon separation was not in error or unjust.


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 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 635-200 sets forth the basic authority for the separation 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 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 Soldiers whose military record is satisfactory but not 
sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 13-4c(2), as then in effect, provided for separation for unsuitability-
apathy (lack of appropriate interest), defective attitudes, and inability to expend effort 
constructively. When separation for unsuitability was warranted, an honorable or under 
honorable conditions (general) discharge certificate was furnished.

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/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)	AR20220011367


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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