IN THE CASE OF: BOARD DATE: 8 February 2023 DOCKET NUMBER: AR20220002031 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge to an honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 293 in lieu of DD Form 149 (Application for Correction of Military Record), 15 November 2021. 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, in requesting an upgrade, that he did not get in any trouble after he was discharged. 3. The applicant provides a written statement with his application. 4. A review of the applicant’s service records shows: a. On 30 November 1978, he enlisted in the Regular Army for a period of 4 years at age 18. He completed basic combat training, he completed Advanced Individual Training, and he was awarded military occupational specialty 62B (Construction Equipment Repairer). b. On 23 July 1982, he reenlisted for a period of 3 years in grade/pay grade specialist/E-4. c. He was counseled (DA Form 4856) on : * 20 December 1982, for not being in the proper place for 0645 hours clean up * 5 January 1983, for not being in his duty uniform and having his wall locker set up according to diagram at 0600 hours d. On 2 July 1983, he was promoted to sergeant/E-5. e. A memorandum issued by Headquarters, U.S. Army Training Center, For Benning, shows he was reported as testing positive for THC as the result of a urinalysis sample he gave on 5 April 1983. f. On 4 October 1983, he was counseled for failing to report to his place of duty at D Company, 43rd Engineer Battalion, Fort Benning, on or about 0900 hours, 4 October 1983 until on or about 1300 hours on 4 October 1983. g. On 13 October 1983, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using marihuana at Fort Benning, on or about 24 August 1983. His punishment consisted of reduction from SGT/E-5 to SPC4/E-4 and forfeiture of $427.00 per month for 2 months. That part of the punishment consisting of forfeiture of $427.00 per month for 2 months was suspended. He did not appeal this punishment. h. On 12 January 1984, he accepted NJP under the provisions of Article 15, UCMJ, for absenting himself from his appointed place of duty at Fort Benning from on or about 1500 hours, 9 December 1983 to on or about 0600 hours, 12 December 1983; he was absent from CQ desk duty on 9 December 1983 and mandatory formation on 11 December 1983. His punishment consisted of reduction from SPC4/E-4 to private first class/E-3 and restriction for 14 days. He did not appeal this punishment. i. On 7 February 1984, his company commander notified him of his intent to recommend his discharge from the service under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance and notified him of his rights. The specific reason for his proposed action were based on: he had unsatisfactory performance. He understood he had a right to consult with consulting counsel, to submit statements in his own behalf; to obtain copies of the documents that would be sent to the discharge authority; and to waive these rights in writing. He further understood he could receive a general, under honorable conditions or honorable characterization of service. j. On 7 February 1984, he acknowledged his rights and understood the basis for the contemplated action to accomplish his separation for unsatisfactory performance, its effects, and the effect of any action taken by him to waive his rights. He understood that he may expect to encounter substantial prejudice in civilian life if a general discharge were issued to him and he would be ineligible to apply for enlistment for a period of 2 years after discharge. He elected not to submit statements in his own behalf and he elected to waive consulting counsel. k. On 5 April 1984, he underwent a mental status evaluation as directed by his command for the purpose of separation consideration. The DA Form 3822-R (Mental Status Evaluation) shows the chief psychiatrist, Martin Army Community Hospital, Fort Benning found that the applicant met the physical retention standards prescribed in Chapter 3, Army Regulation 40-501 (Standards of Medical Fitness). The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings. l. On 25 May 1984, his company commander recommended his discharge from the service under provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance. He stated he had received two instances of NJP, his duty performance had been poor, all rehabilitative attempts had failed, had been not success with rehabilitation efforts. m. On 29 May 19843, the approval authority (Commanding Officer, Headquarters 43rd Engineer Battalion (Combat), 36th Engineer Group, Fort Benning) approved the recommendation for his discharge under provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance and directed issuance of a General Discharge Certificate. The approval authority further directed he not be placed in the Individual Ready Reserve to complete any unfulfilled military obligations. n. On 5 June 1984, he was discharged. His DD Form 214 shows he was discharged under authority of Army Regulation 635-200, chapter 13 with an under honorable conditions characterization of service for unsatisfactory performance. His DD Form 214 further shows he completed 5 years, 6 months, and 5 days of net active service during this period with no lost time. He was awarded or authorized: * Army Service Ribbon * Overseas Service Ribbon * Army Good Conduct Medal * Driver and Mechanic Badge * Mechanic Army Achievement Medal * Expert Marksmanship Qualification Badge with Hand Grenade Bar * Sharpshooter Marksmanship Qualification Badge with Rifle Badge (M-16) 5. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 6. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was 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 determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition and available military records, the Board found insufficient evidence of in-service mitigating factors to overcome the misconduct. The Board noted, the applicant provided insufficient evidence of post-service achievement or character letters of support to show honorable conduct that might have mitigated the discharge characterization. 2. The Board noted, the applicant was discharged for unsatisfactory performance and was provided an under honorable conditions (General) characterization of service. 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. However, the Board determined the applicant’s DD Form 214 did not reflect his periods of honorable service in the remarks section. Based on this, the Board granted partial relief to correct the applicant’s record to show his honorable periods of service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: • SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE • CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19781201 UNTIL 19820722 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade of the applicant discharge. 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 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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 (Personnel Separations – Enlisted Personnel), sets policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of enlisted members for a variety of reasons. a. An honorable discharge is a separation with honor. 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 commanders will separate a member for unsatisfactory performance when it is clearly established that: (1) In the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier; or (2) The seriousness of the circumstances is such that the member's retention would have an adverse impact on military discipline, good order, and morale; (3) It is likely that the member will be a disruptive influence in present or future duty assignments; (4) It is likely that the circumstances forming the basis for initiation of separation proceedings will continue or recur; (5) The ability of the member to perform duties effectively in the future, including potential for advancement or leadership, is unlikely; and (6) The member meets retention medical standards (AR 40-501). 4. Army Regulation 635-5-1 (Separation Program Designators), in effect at the time, listed the specific authorities, regulatory, statutory, or other directive, and reasons for separation from active duty, active duty for training, or full time training duty. The separation program designator "JHJ" corresponded to "Unsatisfactory Service," and the authority, Army Regulation 635-200, chapter 13. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220002031 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1