IN THE CASE OF: BOARD DATE: 14 October 2022 DOCKET NUMBER: AR20220003025 APPLICANT REQUESTS: upgrade of his under honorable conditions, general discharge to honorable and a change to the narrative reason for separation. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 (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 he was told at separation that after three years from that date this action could be completed, so he was misinformed at the time of separation. He was told he had to wait 3 years to file, and he had no urgency to do it, or he would have done so. He had not even applied for benefits until 1 July 2019. He would like his discharge changed to honorable from a general, under honorable conditions and a change or remove the narrative reason form separation from unsuitability, apathy, defective attitude, or inability to expend effort constructively to a normal honorable discharge. 3. The applicant enlisted in the Regular Army on 17 April 1980 for three years. His military occupational specialty was 64C (Heavy Truck Driver). 4. He served in Germany from 17 August 1980 through 2 June 1981. 5. He accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on 16 December 1980 for, on two occasions, without authority, failing to go at the time prescribed to his appointed place of duty on 12 December 1980. His punishment consisted of reduction to private (PVT) (suspended) and extra duty. 6. The applicant’s commander suspended his driving privileges in a memorandum dated 1 January 1981, for recurring incidents of overindulgence in alcoholic beverages. The applicant turned over his Class VI portion of his ration card. This was a permanent measure and directed the applicant would not consume or possess any alcoholic beverages in the company billets or places of duty. The applicant had read and understood the above written order. 7. The applicant received informal and formal counseling’s on/for: * his duty performance and general attitude toward the U. S. Army on 27 January 1981; the applicant stated he did not like it there and he wanted to get out of the army, and he said he was going to do all he could to get out of the Army * he dispatched a truck on 4 February 1981, and the truck broke down, he was told to get help starting the truck, the Military Police (MP) stated the vehicle had not been removed and the applicant was located in the ammo section room (in the sergeant’s opinion) under the influence of alcohol or drugs * his overindulging in alcohol and not performing his MOS duties, he was given a trial period of 60 days for improvement in his MOS skills and off duty behavior 8. The applicant was counseled on 9 February 1981 for various topics. He was formally counseled on 11 February 1981, for failure to repair and being derelict in his duty. 9. The applicant’s commander counseled him in writing on 5 March 1981, for being stopped by the MP’s for driving a non-dispatched 5-ton truck. The applicant received a safety violation for having a taillight out. When interviewed the MP’s smelled beer on the applicant. He was disrespectful in his language and deportment and was found to be in possession of a hash pipe. He was given a blood alcohol test and the residue in the pipe was field tested positive. The commander ordered him not to consume alcoholic beverages at all during the training exercise. The commander was disappointed in his behavior and he was referred for NJP for driving while intoxicated, disrespect to MP, and possession of a smoking device for hash. The applicant acknowledged receipt of this letter on the same date. 10. The applicant's commander revoked his pass privileges. The commander stated his duty performance had been substandard for a period of time. His privileges could be restored at any time, but the applicant must first improve his conduct and duty performance to the commander’s satisfaction. The applicant acknowledged that he understood why his pass privileges were being withheld. 11. The applicant received informal counseling on 23 March 1981, for his behavior during gunnery training. He was drunk and driving a military truck and was disrespectful to an officer and non-commissioned officer. 12. The Staff Duty Log, dated 28 March to 29 March 1981, notes the applicant was intoxicated, caused trouble and used foul language towards another Soldier. When confronted the applicant hit another Soldier. 13. The applicant received informal counseling on 31 March 1981, concerning his behavior and the above incident. The applicant stated he did not remember. His commander recommended the applicant be put in the Frankfurt hospital on a Detox Program, and recommended UCMJ action. 14. The applicant accepted NJP under Article 15 of the UCMJ, on 17 April 1981 for wrongful possession of marijuana on 4 March 1981, operating a vehicle while drunk on 4 March 1981, drunk and disorderly in camp on 4 March 1981, and assault on another Soldier on 28 March 1981. His punishment consisted of reduction to PVT, forfeiture of $250.00 pay per month for two months, extra duty and restriction. 15. The applicant's immediate commander notified the applicant on 23 April 1981 of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13-4c, for unsuitability and the rights available to him. The applicant acknowledged receipt on 28 April 1981. 16. The applicant consulted with legal counsel on 28 April 1981 and was advised of the basis for the contemplated action, the rights available to him, and the effect of action taken by him in waiving his rights. He waived consideration of his case by a board of officers and waived personal appearance. He did not submit a statement in his own behalf and requested counsel and representation by counsel. He further acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable condition was issued to him. 17. The applicant's commander formally recommended the applicant's discharge on 4 May 1981, under the provisions of Army Regulation 635-200, Chapter 13, for unsuitability. His commander further stated: a. The applicant had been informally counseled on five occasions and formally counselled on three occasions. He recommended waiver of the requirements because further retention on active duty would create disciplinary problems or a hazard to the military mission. b. The applicant was in the program for alcohol and drugs but was not making significant progress. No rehabilitative measures had any effect on him. He recommended the applicant be given a General Discharge. 18. The separation authority approved the discharge recommendation and directed the issuance of a General Discharge Certificate. 19. The applicant was discharged on 3 June 1981. 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 13-4c, based on unsuitability, apathy, defective, attitude or inability to expend effort constructively. His characterization of service was under honorable conditions. He completed 1 year, 1 month, and 17 days of active service. It also shows he was awarded or Authorized the: * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar 20. On 18 December 1989, the Army Discharge Review Board, determined that the applicant was properly and equitably discharged and advised the applicant that his request for a change in the character and/reason of his discharge had been denied. 21. By regulation, 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. 22. The Board should consider the applicant's statement in accordance with the published equity, injustice, and clemency determination guidance. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on mental health conditions, including post-traumatic stress disorder (PTSD). The Veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience may have existed during or might have been aggravated by military service, and that the condition or experience may excuse or mitigate the discharge. 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 liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was discharged from active duty due to unsuitability, apathy, defective, attitude or inability to expend effort constructively. 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 that the character of service and narrative reason the applicant received upon separation were 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, 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 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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. 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. Army Regulation 635-5 (Separation Documents), states, the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. a. Block 24 (Character of Service) characterization or description of service is determined by directives authorizing separation. b. Block 28 (Narrative Reason for Separation) is based on regulatory or other authority and can be checked against the cross reference in Army Regulation 635–5–1. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014 [Hagel Memorandum], to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 5. The Acting Principal Deputy Under Secretary of Defense (Personnel and Readiness) provided clarifying guidance to Service DRBs and Service BCM/NRs on 24 February 2016 [Carson Memorandum]. The memorandum directed the BCM/NRs to waive the statute of limitations. Fairness and equity demand, in cases of such magnitude that a Veteran's petition receives full and fair review, even if brought outside of the time limit. Similarly, cases considered previously, either by DRBs or BCM/NRs, but without benefit of the application of the Supplemental Guidance, shall be, upon petition, granted de novo review utilizing the Supplemental Guidance. 6. 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) AR20220003025 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1