ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  22 April 2019

	DOCKET NUMBER:  AR20160016107


APPLICANT REQUESTS:  The applicant request his under honorable conditions 
discharge be upgraded to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Applicant Statement
*	DD Form 214

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 17 years old when he joined the Army.  He completed 
basic training and AIT and about a year later he received a message that his 9 year old 
brother was killed; he was hit by a train.  He’s never experienced death let alone a 
brother; he wanted to stay home and not return to the Army.  His family encouraged him 
to go back and when he did, his commander informed him that he would be discharged.  
He believes this was the commanders’ best way to address him being AWOL.  Now that 
he is 58 years old, he would like to clear his name.  He would like to use service time for 
his retirement from his state so, his discharge must be honorable; the reason and 
authority on his DD Form 214 can’t be left blank.

3.  On 23 March 1976, the applicant entered the Regular Army at the age of 17.

4.  A statement of formal counseling shows the applicant was counseled several times, 
from 12 October 1976 through 7 July 1977 for: 

*	Failure to get a hair-cut
*	Shirking of duty
*	Failure to report to duty
*	Rehabilitation Transfer
*	Absence from morning formation
*	Failure to follow written SOP
*	Speeding on a motorcycle

5.  On 6 December 1976, he received non-judicial punishment (NJP) for wrongfully have 
in his possession a small amount of marijuana.

6.  On 13 March 1977, he received NJP for absent without authority (AWOL) himself 
from on or about 2 February 1977 to on or about 2 March 1977.

7.  On 12 June 1977, he received NJP for disrespect and failure to go/stay at his 
prescribed place of duty on two different occasions.  

8.  On 27 July 1977, the applicant's commander notified him that he was initiating action 
to discharge him under the provisions of paragraph 5-37 (Expeditious Discharge 
Program) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 
with a general discharge.  The commander stated the reasons for his proposed action 
were the applicant's poor attitude, lack of motivation, lack of discipline, inability to adapt 
socially, failure to demonstrate promotion potential, and hostility toward the Army.  

a.	The applicant was advised by legal counsel of his available rights, provided a 
statement on his own behalf, and acknowledged the commanders proposed discharge 
action.

b.	The commander recommended the applicant be discharge and furnished a 
general discharge. 

9.  On 2 August 1977, the appropriate authority approved the discharge and directed 
the applicant be furnished a general discharge certificate.

10.  On 11 August 1977, the applicant was discharged accordingly.  His DD Form 214 
shows: 

*	Authority and reason: AR 635-200 PARA 5-37
*	RE Code: RE-4
*	Total Active Service: 1 year, 3 month and 21 days
*	Time Lost: 28 days 

11.  The applicant provides a Report of Separation from the Department of the Army 
and The Air Force National Guard Bureau that shows he enlisted in the New York Army 
National Guard on 27 November 1987 and completed 3 years, 3 months and 5 days of 
service and a Letter from the New York State and Retirement System referencing 
receipt of his request for military service credited towards his civilian retirement.  He 
provides a copy of his DD Form 214 with item 9c highlighted showing it is blank.  

11.  Army Regulation 635-200 paragraph 5-37 states enlisted personnel who 
demonstrated they could not or would not meet acceptable standards required of 
enlisted personnel in the Army because of the existence of one or more of the following 
conditions:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt 
socially or emotionally, or failure to demonstrate promotion potential.  

12.  The applicant states he was 17 years old when he joined the Army.  A year later he 
received a message his 9 year old brother was hit by a train and killed; He’s never 
experienced death let alone a brother; he wanted to stay home and not return to the 
Army but his family told him he must return so he did.  His commander informed him 
that he would be discharged once he returned.  He contends his authority reason on his 
DD Form 214 that he provided is blank.   His DD Form 214 shows the authority and 
reason as AR 635-200 PARA 5-37.

13.  In reaching its determination, the Board should consider the applicant's petition, his 
service record, and his statement in light of the published Department of Defense 
guidance on equity, injustice, or clemency.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The board applied Office of the Secretary of 
Defense standards of liberal consideration and clemency to the complete evidentiary 
record, including the applicant’s statement and did not find any evidence of error, 
injustice, or inequity and no supporting evidence of mitigating circumstances for the 
misconduct. The Board agreed that the applicant’s discharge characterization is 
appropriate for the misconduct.


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.


ADMINISTRATIVE NOTE(S):

Not Applicable

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 635-200, then in effect, set forth the basic authority for the 
separation of enlisted personnel.  
     a.  An honorable discharge was a separation with honor and entitled the recipient to 
benefits provided by law.  The honorable characterization was appropriate when the 
quality of the member’s service generally had met the standards of acceptable conduct 
and performance of duty for Army personnel, or was otherwise so meritorious that any 
other characterization would have been clearly inappropriate.
     b.  Paragraph 5-37 (Expeditious Discharge Program) provided for the discharge of 
enlisted personnel who demonstrated they could not or would not meet acceptable 
standards required of enlisted personnel in the Army because of the existence of one or 
more of the following conditions:  poor attitude, lack of motivation, lack of self-discipline, 
inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  
The regulation provided that no individual would be discharged under this provision 
unless the individual voluntarily consented to the proposed discharge.  Individuals 
discharged under this regulation were issued either an honorable or 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 (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.  
     
     a.  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.  
     b.  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.


ABCMR Record of Proceedings (cont)	 AR20160016107
	
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