ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 May 2019 DOCKET NUMBER: AR20160015049 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) * Standard Form (SF) 513 (Clinical Record – Consultation Sheet) * Memorandum, subject: Appeal of Discharge Proceedings Initiated Against Applicant 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 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 a victim of discrimination. He was one of three black Soldiers in his company living in the barracks. He was ordered to get 5 gallons of wax off the hall that someone else put there and to get grass out of the cracks of the runway. 3. The applicant provides: a. SF 513, dated 10 June 1976, which shows the applicant was to be discharged urgently either on medical basis or otherwise. b. Memorandum, subject: Appeal on Discharge Proceedings Initiated Against Applicant, dated 7 July 1976, which shows the applicant was requesting an honorable discharge based on the communication received from his company commander. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 6 October 1975. b. His duty status changed from present for duty to absent without leave (AWOL) on 12 February 1976. His duty status changed from AWOL to present for duty on 16 February 1976. c. He accepted nonjudicial punishment on/for: * 19 February 1976, for willfully disobeying an order * 4 March 1976, for wrongfully appropriating personal property * 3 August 1976, for willfully disobeying an order d. On 30 June 1976, his immediate commander notified the application of his intent to discharge him under the provisions of paragraph 5-37 (Expeditious Discharge Program), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He recommended a General Discharge Certificate. The reasons for his proposed action was: * lack of motivation * failure to adapt socially and emotionally * poor attitude * inefficiency in duty performance * lack of promotion potential e. On 2 July 1976, the applicant acknowledged notification of his proposed separation. He voluntarily consented to discharge. He elected to submit a statement in his own behalf (Not included in the record). He understood: * if he was issued a general discharge under honorable conditions, he may expect to encounter substantial prejudice in civilian life * he acknowledged he was provided the opportunity to consult with an officer of the Judge Advocate General’s Corps * he may withdraw his voluntary consent to discharge prior to the date the discharge authority approved his discharge * if he declined to accept the discharge voluntarily, he may at a future time, if his conduct so warranted, be subject to separation under other provisions of law or regulation * if he was a bonus recipient, he would be indebted to the Government for monies received f. On 2 July 1976, his immediate commander recommended approval of the initiation of separation proceedings under the provisions of paragraph AR 635-200, paragraph 5-37. g. On 7 July 1976, the applicant submitted an appeal on discharge proceedings initiated against him based on previous correspondence with his company commander in which he recommended the applicant receive an honorable discharge. He felt that he should receive an honorable discharge due to the fact that he knows that he was a better Soldier than people think that he was. h. On 2 August 1976, consistent with the chain of command recommendation, the separation authority approved the discharge request under the provisions of paragraph 5-37, AR 635-200. He directed the applicant receive a general discharge. i. The applicant was discharged on 13 August 1976 under the provisions of paragraph 5-37, AR 635-200 with an under honorable conditions (General) discharge. His DD Form 214 (Report of Separation from Active Duty) shows he completed 10 months and 3 days of active service, with 5 days lost. It also shows he was awarded or authorized: * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Marksmanship Qualification Badge with Hand Grenade Bar 5. On 14 March 2019, the Army Review Boards Agency’s medical advisor rendered an advisory opinion in the processing of this case. He opined: a. The available record does not reasonably support post-traumatic stress disorder or another boardable behavioral health condition existed at the time of the applicant’s military service. The applicant reported a history of alcohol abuse since 8-9 years of age and alcoholism starting around the time of military service. The applicant is currently Department of Veterans Affairs service-connected for major depressive disorder. b. Behavioral health conditions were not present at the time of misconduct based on available service and personnel records. The available service records note no behavioral or medical conditions. c. The applicant’s behavioral health conditions were not mitigating for the misconduct. d. He met medical retention standards for visual acuity, enuresis (presumably) and other physical, medical, dental and/or behavioral conditions. e. The applicant’s medical conditions were duly considered during medical separation processing. f. A review of the available documentation found no evidence of a medical disability or condition that would support a change to the character and/or reason for the discharge in this case. 6. On 19 March 2019, the advisory opinion was forwarded to the applicant for acknowledgement and/or response. He did not respond. 7. By regulation, personnel whose performance of duty, acceptability for the service, and potential for continued effective service fall below the standards required for enlisted personnel in the Army may be discharged. Normally, an honorable discharge will be awarded unless the Soldier’s conduct clearly substantiates a general discharge. 8. 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: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the multiple UCMJ violations and the medical advisory finding the applicant’s behavioral health conditions were not mitigating for the misconduct, the Board concluded that he characterization of service received at the time of discharge was appropriate. 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. 1 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, 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. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 5-37 (Discharge for Failure to Demonstrate Promotion Potential) states personnel whose performance of duty, acceptability for the service, and potential for continued effective service fall below the standards required for enlisted personnel in the Army may be discharged. Normally, an honorable discharge will be awarded unless the Soldier’s conduct clearly substantiates a general discharge. 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 (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 acknowledgment that a relative error or injustice was committed, or 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 benefits or similar benefits that might have been received if reason for the discharge had been for the revised reason or had the upgraded service characterization.