ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  28 July 2020 DOCKET NUMBER:  AR20200000823 


APPLICANT REQUESTS:  An upgrade of his general discharge under honorable conditions to honorable. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.DD Form 214 (Report of Separation from Active Duty)

.State Department of Veterans Affairs claim correspondence



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states he has changed his life as a civilian and he needs his dischargeupgraded to receive the benefits that he need.  He has not been in trouble or used acontrolled substance in while.  He is trying to live a better life as a veteran.

3.On 31 May 1975, he enlisted in the Regular Army for 3 years.  He held militaryoccupational specialty 62B and served as a wheel vehicle mechanic and engineerequipment repairer.  On 24 October 1975, he was assigned to Fort Campbell, KY, withthe duties of a wheel vehicle mechanic.

4.On 8 December 1975, he accepted nonjudicial punishment (NJP) under theprovisions of Article 15, Uniformed Code of Military Justice (UCMJ) for failing to go tohis appointed place of duty at the time prescribed on 2 December 1975.  Hispunishment included a forfeiture of pay ($93) and 14 days of extra duty.

5.Court-Martial Order Number 18, dated 21 April 1976, shows a special court-martialconvened at Fort Campbell, pursuant to Court-Martial Order Number 16, thisheadquarters, dated 3 March 1976, as amended by Court-Martial Convening OrderNumber 24, this headquarters, dated 2 April 1976, he was arraigned and tried for
wrongfully having in his possession a controlled substance (some amount of marijuana) on or about 18 January 1976 and on or about 28 February 1976.  He was found notguilty of having possession a controlled substance (marijuana) on 28 February 1976. On 6 April 1976, he was sentenced to restriction and to perform extra duty for 60 daysand a forfeiture of $68 pay for 1 month,  

6.On 4 May 1976, he accepted NJP under the provisions of Article 15, UCMJ, forbeing derelict in the performance of his duties, on 16 April 1976, by sleeping whilepulling barracks guard and for sleeping while performing the duties of a security guardon 3 March 1976.  His punishment included a forfeiture of $80 pay for 1 month, 14 daysof extra duty and restriction (both suspended for 90 days).

7.On 2 June 1976, the applicant’s commander initiated a bar to reenlistment againsthim, stating the above misconduct.  The commander also stated the applicant failed toreport for duty at 06:30 hours, on 3 December 1975 and he failed to report for formationat 07:50 hours on 8 December 1975.  The applicant declined to submit a statement inhis own behalf.  On 12 July 1976, the bar to reenlistment was approved.

8.On 30 July 1976, the applicant’s commander notified the applicant in writing of hisintent to separate him under the provisions of Army Regulation (AR) 635-200(Personnel Separations – Enlisted Personnel) for unsuitability (chapter 13 (Separationfor Unfitness or Unsuitability).  The commander cited the basis for the recommendationas the above misconduct, the bar to reenlistment, his attitude, his failure to applyhimself, and that he showed up late to perform extra duty intoxication to the point thathe could not perform and had to be released.

9.On 2 August 1976, after consulting with counsel, the applicant acknowledgedcounsel had advised him of the basis for the separation action.  He waived his right topersonally appear before a board of officers, to have his case considered by a board ofofficers, and to be represented by counsel.  He also elected not to submit a statement inhis own behalf.

10.On 10 August 1976, the applicant’s commander recommended that rehabilitationmeasures be waived.  On 17 August 1976, the applicant’s commander recommendedthe applicant’s discharge under the provisions of AR 635-200, paragraphs 13-5b (3),due to unsuitability.  The commander stated further rehabilitation was not consideredfeasible because he had shown through his actions that he was not willing to improvehis conduct and he was a constant disruptive influence to the unit.

11.On 19 August 1976, the separation authority approved the commander'srecommendation and directed the issuance of General Discharge Certificate underhonorable conditions; the cited authority is AR 635-200, paragraphs 13-5b(3).

12.On 25 August 1976, the applicant was separated with a general discharge underhonorable conditions; his DD Form 214 shows he completed 1 years, 2 months, and
25 days of his 3-year enlistment contract.  He was awarded or authorized theSharpshooter Marksmanship Qualification Badge Rifle (M-16) and Hand Grenade Bar.

13.His DA Form 2-1 (Personnel Qualification Record) shows no types of reports.

14.The applicant essentially argues that he has changed and he needs his dischargeupgraded to receive the benefits he needs.  He has not been in trouble or used acontrolled substance in while.  He is trying to be a better veteran.

15.In reaching its determination, the Board can consider the applicant’s petition, hisarguments and assertions, and his service record in accordance with the publishedequity, injustice, or clemency guidance.

BOARD DISCUSSION: 

The Board reviewed the applicant’s contentions and the evidence of record.  The Board considered published DoD guidance for consideration of discharge upgrade requests.  The Board considered whether there were errors in the discharge processwarranting a discharge upgrade and whether a discharge upgrade is otherwise warranted in the interest of justice.  The Board found insufficient evidence of in-service mitigation for the applicant's misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination.  The Board found the applicant has not demonstrated, by apreponderance of evidence, an error or injustice warranting an upgrade of his under honorable conditions (general) discharge to an honorable discharge. 
BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : 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. 


X 


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):  NA 
 
REFERENCES: 
 
1.  Title 10, USC, 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 Army Board for Correction of Military Records (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.  AR 635-200, in effect at the time, prescribed policies and procedures of enlisted administrative separations.   
  
     a.  Paragraph 1-9d (Honorable Discharge) stated an honorable discharge was a separation with honor.  Issuance of an honorable discharge was conditioned upon proper military behavior and proficient duty performance.  A Soldier's service was to be characterized as honorable based on conduct ratings of at least "Good"; efficiency ratings of at least "Fair"; no general court-martial, and no more than one special court-martial conviction. 
 
     b.  Chapter 13 established policies and procedures for the elimination of enlisted personnel who were determined to be unfit or unsuitable for continued military service.   
  
          (1)  Paragraph 13-5b (2) stated, as determined by medical authority, character and behavior disorders, and disorders of intelligence, were listed in Technical Bulletin, Medical, Number 15; such disorders could be used as a basis to separate Soldiers when chronic, unresponsive to rehabilitation, and interfered with the Soldier's ability to adequately perform duties. 
  
          (2)  Paragraph 13-5b (3) addressed Soldiers who displayed a lack of appropriate interest, a defective attitude, and/or the inability to expend effort constructively.   
  
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/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 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.  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. 
 
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