ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 July 2019 DOCKET NUMBER: AR20160015605 APPLICANT REQUESTS: an upgrade of his characterization of service from under honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS 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 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, in effect, he request an upgrade due to his medical and psychological conditions. 3. A review of his service records shows: a. He enlisted on 25 June 1974, in to the Regular Army (RA). b. His DA Form 2-1 (Personnel Qualification Record) shows he was confined by civilian authorities for a period of 133 days from 13 October 1974 to 24 February 1975; however, a statement “not convicted” follows this entry. c. On 12 May 1975, Summary Court Martial Order Number 43, reflects that he was charged with two specifications of using disrespectful language to his superior noncommissioned officers. He plead guilty and was found guilty of all charges. His sentence was reduction to private/E-1, and forfeiture of pay of $100.00, for one month. The sentence was adjudged on 10 May 1975, and reviewed by the Judge Advocate on 13 May 1975. d. On 20 June 1975, the applicant accepted nonjudicial punishment (NJP) for one specification of failure to be at appointed place of duty. e. On 7 June 1976, the applicant accepted NJP for one specification of failure to obey a lawful order of a superior commissioned officer. f. On 21 June 1976, his immediate commander notified him that action was being initiated to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 5 (Separation for Convenience of the Government), paragraph 5-37 (Discharge for failure to demonstrate promotion potential), based on unsatisfactorily performance. g. On 21 June 1976, the applicant acknowledged the commander’s intent to separate him under the provisions of AR 635-200, chapter 5-37. He acknowledged: * Receipt of the letter of notification * That he voluntarily consented to the discharge * He may expect to encounter substantial prejudice in civilian life * he has been provided the opportunity to consult with an officer of the Judge Advocate General's (JAG) Corps h. Subsequent to the applicant's acknowledgement, the immediate commander formally initiated separation action against the applicant under the provisions of chapter 5 of AR 635-200, separation for the convenience of the government, discharge for failure to demonstrate promotion potential. i. On 6 July 1976, the chain of command reviewed the separation recommendation and subsequently recommended approval of the separation with a characterization of service as under honorable conditions. j. On 14 July 1976, the separation approval approved separation under the provisions of AR 635-200, chapter 5, paragraph 5-37, with a under honorable conditions (general) characterization of service. k. On 19 July 1976, a legal sufficiency was conducted and determined the discharge was legally sufficient. l. On 4 August 1976, the applicant was discharged from active duty under the provisions of AR 635-200, Chapter 5-37 with a general under honorable conditions characterization of service. He completed 2 years, 1 month, and 10 days of active duty service. He was awarded or authorized: * National Defense Service Medal * Parachute Badge * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M16) 4. On 26 April 2019, the Army Review Boards Agency medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion and opined: a. Review of the applicant's electronic VA medical record indicates that the applicant is 10% service connected for tinnitus. b. Based on the available medical record, the applicant met retention standards in accordance with AR 40-501 (Standards of Fitness). c. Therefore, based on the information currently available, it is the opinion of the Agency Medical Advisor that a referral of the applicant's record to IDES for consideration of military medical retirement is not indicated at this time. d. In addition, based on the information available for review at this time, the applicant did not have mitigating medical or behavioral health conditions for the offenses, which led to his separation from the Army. 5. On 3 May 2019, the applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. 6. The applicant's record is void of evidence that shows he/she applied for a discharge upgrade with the Army Discharge Review Board within 15 years of the separation. 7. On 2 October 2018, ARBA received a Congressional Inquiry in reference to the status of the applicant’s case. The congressional liaison for ARBA replied on 10 October 2018, informing the Constituent Services Representative that the applicant has an open application and is still being processed for consideration. 8. By regulation (AR 635-200), 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 U.S. Army may be discharged in accordance with the following criteria 9. 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 short term of honorable service completed prior to a pattern of misconduct, as well as the applicant already receiving an Under Honorable Conditions (Genreal) discharge, the Board concluded that the characterization of service received at the time of separation 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. 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, set forth the basic authority for the administrative separation of enlisted personnel. 3. AR 40-501 (Medical Services – Standards of Medical Fitness) governs regulation governs Medical fitness standards for enlistment, induction, and appointment, including officer procurement programs, Medical fitness standards for retention and separation, including retirement, Medical fitness standards for diving, Special Forces, Airborne, Ranger, free fall parachute training and duty, and certain enlisted military occupational specialties (MOSs) and officer assignments. It also governs Medical standards and policies for aviation, Physical profiles, and Medical examinations. 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160015605 4 1