IN THE CASE OF: BOARD DATE: 5 October 2023 DOCKET NUMBER: AR20230003075 APPLICANT REQUESTS: * in effect, an upgrade of his general, under honorable conditions discharge to honorable * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). 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 he would like to be eligible to apply for additional benefits from the Department of Veterans Affairs. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 5 October 1982 for a term of 3 years. b. On 15 April 1983, the applicant accepted nonjudicial punishment for violation of Article 86 of the UCMJ as a result of absenting himself from his unit from 6 April 1983 to 7 April 1983. His punishment included forfeiture of $128 for one month and extra duty for 12 days. He did not appeal the Article 15 nor demand trial by court-martial. c. On 13 May 1983, the applicant accepted nonjudicial punishment for violation of Article 134 of the UCMJ as a result of communicating a threat to a fellow Soldier. His punishment included reduction to Private (E-1), forfeiture of $133 for one month and extra duty for 14 days. He did not appeal the Article 15 nor demand trial by court- martial. d. The Commander placed a Bar to Reenlistment on the applicant on 16 May 1983. e. On 2 June 1983, the applicant accepted nonjudicial punishment for violation of Article 86 of the UCMJ as a result of failing to go to his appointed place of duty on 22 May 1983. His punishment included forfeiture of $133 for one month, extra duty for 7 days and restriction for 7 days. He did not appeal the Article 15 or demand trial by court- martial. f. The applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Army Regulation (AR) 635-200, Chapter 13, for unsatisfactory performance. g. On 22 June 1983, after consultation with legal counsel, he acknowledged: * he was not entitled to have his case heard before an administrative separation board because he had less than 6 years of service * the rights available to him and the effect of waiving said rights * he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him * he may be ineligible for many or all benefits as a Veteran under both Federal and State laws * he may apply to the Army Discharge Review Board or the ABCMR for an upgrade request * he will be ineligible to apply for enlistment in the U.S. Army for a period of two years following discharge h. The immediate commander initiated separation action against the applicant for unsatisfactory performance. The commander indicated that his action was based upon defective attitude to execution of required tasks, receipt of two separate Article 15’s, bar to reenlistment, mismanagement of financial affairs, and unacceptable behavior, among other things. The intermediate commander recommended he receive a general discharge. i. On 19 June 1983, the separation authority approved the discharge recommendation for immediate separation under the provisions of AR 635-200, Chapter 13, for unsatisfactory performance. He would be issued a General Discharge Certificate. j. The applicant was discharged from active duty on 11 July 1983 with a general, under honorable conditions characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 9 months and 6 days of active service. He was assigned separation code JKJ and the narrative reason for separation listed as “Unsatisfactory Performance,” with a reentry code of 3/3B. 4. By regulation (AR 15-185), an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 5. By regulation, (AR 635-200) a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. The service of members separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record. 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. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. 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, his bar to reenlistment, 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 :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 15-185 (ABCMR) 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, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states 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 of the regulation states a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. The service of members separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record. 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) AR20230003075 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1