IN THE CASE OF:  

		BOARD DATE:  25 November 2020

		DOCKET NUMBER:  AR20200003039


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 293 (Application for the Review of Discharge or Dismissal from the
     Armed Forces of the United States)
*	DD Form 149 (Application for Correction of Military Record)
*	Applicant Letter

FACTS:

1.  The applicant did not file within the three-year time frame provided in Title 10, United 
States 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 driving someone’s van and did not participate in taking 
anything. He is now at the Board's mercy for a second chance. He states he learned a 
lot from his mistake in 1969 at Fort Polk, LA. He is a proud American and even more 
proud to be a Veteran. He asks the Board to have mercy on him.

3.  Review of the applicant’s service records shows:

     a.  He enlisted in the Regular Army on 7 March 1977.  His military occupational 
specialty was 11B (Infantryman).

     b.  He accepted nonjudicial punishment on/for:

*	12 January 1979 - without authority, 27 December 1978, failing to go at the 
time prescribed to his appointed place of duty and did remain so absent until 
on or about 28 December 1978 
*	23 April 1979 - failing to appear at his appointed place of duty-failure to repair
*	11 July 1979 - without authority, 3 July 1979, failing to go at the time 
prescribed to his appointed place of duty, his punishment included a reduction 
to E-2

     c.  On 6 July 1979, the applicant's immediate commander initiated a bar to 
reenlistment against the applicant. His conduct and efficiency were unsatisfactory. His 
commander stated:

		(1)  Since the applicant’s assignment to the unit he had demonstrated a complete 
disregard for authority, and had shown no desire to conform to accepted standards of 
conduct for the unit. He had continually absented himself for periods of one to 24 hours, 
been repeatedly disrespectful to his superior non-commissioned officers, and shown no 
ability to work well with his peers, causing an undermining of maintenance of good order 
within his section, platoon, and the Troop. 

		(2)  His example to his peers had negatively influenced them, and he had 
demonstrated no worth to the unit or the Army. Further service upon his part would not 
be in the best interests of the Army. He had been repeatedly counseled. 

	d.  The applicant was furnished with a copy of this bar but he elected to not submit 
statements in his own behalf.  The higher commander subsequently approved the bar to 
reenlistment. 

     e.  On 15 July 1979, his duty status was changed from present for duty to civilian 
confinement. Details of such confinement are not available for review. 

     f.  The complete facts and circumstances surrounding the applicant’s discharge are 
not available for review. However, his records contain: 

		(1)  Order 20-92, issued by Headquarters, 5th Infantry Division, Fort Polk, LA, on 
29 January 1980, ordered him discharged effective 1 February 1980.

		(2)  DD Form 214 that shows he was discharged on 1 February 1980 under the 
provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), 
paragraph 14-33b (Misconduct).  His character of service was under other than 
honorable conditions.  He completed 2 years, 10 months, and 25 days of active service. 
It also shows he was awarded or authorized:

*	Sharpshooter Marksmanship Qualification Badge with Pistol Bar (.45 caliber)
*	Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
*	Marksman Marksmanship Qualification Badge with Hand Grenade Bar

4.  There is no evidence the applicant has applied to the Army Discharge Review Board 
for review of his discharge within that board's 15-year statute of limitations.

5.  By regulation, members are subject to separation for frequent incidents of 
discreditable nature with civil or military authorities, an established pattern for shirking, 
showing dishonorable failure to contribute adequate support to dependents or failure to 
comply with orders, decrees, or judgements of a civil court concerning support of 
dependents.

6.  In reaching its determination, the Board can consider the applicants petition and his 
service record in accordance with the published equity, injustice, or clemency 
determination guidance.

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 consideration of 
discharge upgrade requests.  The Board considered the applicant’s statement, his 
record of service, the frequency and nature of his misconduct and the reason for his 
separation.  The Board found insufficient evidence of in-service mitigation to overcome 
the misconduct 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 that 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

XXX	XXX	XXX	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, United States 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 Army Board for 
Correction of Military Records (ABCMR) determines it would be in the interest of justice 
to do so.

2.  Army Regulation 635-200, (Personnel Separations-Enlisted Personnel) in effect at 
the time, provides for the separation of enlisted personnel.

     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.  A (General Discharge) is a separation from the Army under honorable conditions.  
When authorized, it is issued to a member whose military record is satisfactory but not 
sufficiently meritorious to warrant an honorable discharge.

     c.  Chapter 14 -33b (Misconduct) of that regulation provides that members are 
subject to separation for frequent incidents of discreditable nature with civil or military 
authorities, an established pattern for shirking, showing dishonorable failure to 
contribute adequate support to dependents or failure to comply with orders, decrees, or 
judgements of a civil court concerning support of dependents.
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 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)	 AR20200003039


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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