IN THE CASE OF: BOARD DATE: 21 September 2023 DOCKET NUMBER: AR20230000917 APPLICANT REQUESTS: upgrade of his general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 7 November 2022 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 1 August 1983 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 he was told his discharge would be changed to honorable after a year. He believes it was a stipulation of his discharge. He did not remember that he had to apply to get his discharge upgraded. 3. The applicant provided his application and a copy of his DD Form 214. 4. A review of the applicant's service records shows: a. On 13 November 1981, he enlisted in the Regular Army for 3 years at age 19. He completed Basic Combat Training and Advanced Individual Training, and he was awarded military occupational specialty 19E (Armor Crewman). b. On 8 July 1982 he was assigned to A Company, 2nd Battalion, 34th Armor, 4th Infantry Division, Fort Carson. c. On 9 February 1983, he attained the grade/pay grade private first class/E-3. d. On 8 March 1983, his status was reported as absent without leave (AWOL) from 0700 hours, 8 March 1983 to 1500 hours, 9 March 1983. e. On 15 March 1983, he was counseled for being AWOL and notified he could be discharged from the Army. f. An undated written statement from his SFC, 1st Platoon, A Company, 2/34 Armor reads that he was AWOL from 0400 hours on 4 April 1983 to 0100 hours on 5 April 1983. g. On 12 April 1983, he accepted company grade nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from his unit, A Company, 2/34 Armor, Fort Carson form 7 March 1983 to 9 March 1983. His punishment consisted of reduction to private 2/E-2, forfeiture of $150.00 for 1 month, and restriction and extra duty for 14 days. He did not appeal this punishment. h. On 9 May 1983, he was given summary NJP for failing to be at his appointed place of duty from 4 April 1983 to 5 April 1983. His punishment consisted of 14 days of extra duty and 14 days of restriction. He did not appeal this punishment. i. On 28 May 1983, he underwent a mental health evaluation as requested by his command. A DA Form 3822-R (Report of Mental Status Evaluation) shows: (1) He had normal behavior and a fully oriented level of alertness with an unremarkable mood or affect; he had a clear thinking process with normal content and good memory. (2) In the examiner's opinion, he had the mental capacity to understand and participate in the proceedings, he was mentally responsible, and he met the retention requirements of Army Regulation 40-501, Chapter 3. (3) The condition and the problems presented by the Soldier were not, in the opinion of the examiner, amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification to another type of duty withing the military. It was unlikely that efforts to rehabilitate or develop the individual into a satisfactory member of the military would be successful. (4) There was no evidence of psychiatric condition which would warrant disposition through medical channels. He was psychiatrically cleared for any administrative action deemed appropriate by his command. j. On 23 June 1983, he was counseled by his acting company commander that his performance during the last several months had been substandard and his acting commander was considering recommending his elimination from the service. k. On 24 June 1983, he accepted company grade NJP for operating a vehicle at Fort Carson while drunk. His punishment consisted of reduction to private/E-1, forfeiture of $286.00 for 2 months, and restriction and extra duty for 45 days. He did not appeal this punishment. l. On 1 July 1983, his company commander notified him of his intent to recommend his discharge from the service under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 13 for unsatisfactory performance and notified him of his rights. The specific reasons for his proposed action were based on his unsatisfactory performance. He recommended a general, under honorable conditions or an honorable characterization of service. m. On 1 July 1983, after waiving consultation with counsel, he acknowledged: * he understood the basis for the contemplated action to accomplish his separation for unsatisfactory performance * the effect of any action taken by him to waive any of his rights * 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 could apply to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading * he elected not to submit statements in his own behalf * he indicated he retained a copy of this memorandum n. On 6 July 1983, his status was reported by his first sergeant as AWOL. o. On 13 July 1983, his intermediate commanders recommended approval of his discharge and noted he was AWOL as of 8 July 1983. p. On 21 July 1983, the approval authority (Commanding Officer, Headquarters, 4th Infantry Division, Fort Carson) approved his discharge under provisions of Army Regulation 635-200, paragraph 13-2, by reason of unsatisfactory performance and directed issuance of a General Discharge Certificate. q. On 1 August 1983, he was discharged. His DD Form 214 shows he completed 1 year, 5 months, and 5 days of net active service during this period with 19 days lost time from 6 July 1983 to 24 July 1983. 5. 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: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense 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 and 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 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 :xx :xx :xx 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 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. 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/NRs) 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. 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 based on 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. 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) AR20230000917 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1