ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  20 June 2019

	DOCKET NUMBER:  AR20160016802


APPLICANT REQUESTS: upgrade of his general discharge to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  DD Form 293 (Application for the Review of Discharge).

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:

     a.  On or around July 1980 he was in the field with his unit performing training drills.  He was assigned to a mortar platoon and was ordered by a lieutenant (LT) to not fire the four corners of his safety fan, if asked to by the forward observer.  He was asked to fire, but he refused.  However, the next mortar company over fired the four corners, and he was told a civilian barn was blew-up.  His LT looked at the plotting board and saw it was not him that fired.  A sergeant first class also examined his data and told him it was not him that fired.  

     b.  A Major General (MG) came out to the range, looked at his plotting board and shutdown the range.  He was upset that the MG and unit blamed him and thought he did it.  His mind was rattled really badly, so he went home halfway through the summer camp [training drills] and never went back.  He never went back to weekend drills again until one weekend that he does not remember the date.  A sergeant from his unit came and collected his gear and he never went back to the National Guard Armory until after 1989, when he was told he could not reenlist.  His unit determined he was now mentally unfit due to the aforementioned incident.  He does not remember the doctor’s name.  This is why he needs his discharge upgraded.                  

3.  On 26 May 1977, he enlisted in the Arkansas Army National Guard (AARNG) for a period of 6 years.
4.  In connection with his enlistment he acknowledged that he had been oriented on and understood the satisfactory participation requirements and enforcement provisions of Army Regulation (AR) 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Provisions).  It was explained to him:

* basic policy
* excused absences from training
* unexcused absences from training
* relocation of residence 
  
5.  On 8 December 1977, he was honorably released from active duty for training.  He completed 3 month and 11 days of net active service this period.  

6.  His record contains multiple letters of instruction for unexcused absences during the period of 12 September to 22 November 1981.  
          
7.  On 7 December 1981, the applicant’s commander notified him of his unsatisfactory participation and his right to appeal.  The notification also indicated he did not submit a request to be excused from training assemblies for period(s) “1-4” on 21 and                         22 November 1981.    

8.  On 15 January 1982, his commander initiated action to separate him from the AARNG for misconduct, under the provisions of chapter 7, AR 135-178.  Separation action was suspended for 45 days to give the applicant an opportunity to exercise the following privileges:

* to consult with consulting counsel
* to appear and present his case before an administrative separation board
* to be represented at any hearing by appointed counsel for representation, military counsel of his own choice or civilian counsel at his own expense
* to submit statements in his own behalf 
* with the exception of consulting with counsel, to waive the above rights in writing
* to withdraw waiver of rights listed above before the date the separation authority orders, directs, or approves his separation, and request that his case be presented to a board of officers 

9.  His record contains certified mailed receipts signed by the applicant acknowledging receipt of the letters and notifications.

10.  On 11 March 1982, the applicant was discharged from the AARNG under honorable conditions and issued a General Discharge certificate.  He was further assigned to the U.S. Army Reserve Control Group (Annual Training).
11.  On 26 May 1983, he was discharged from the Ready Reserve and issued a general discharge.  

12.  National Guard Regulation (NGR) 600-200 and Army Regulation 135-91 govern procedures covering enlisted personnel management of the Army National Guard.  The NGR covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the State Army National Guard.  The NGR also contains guidance stating individuals can be separated for being an unsatisfactory participant.  AR 135-91 states that a member is an unsatisfactory participant when nine or more unexcused absences from scheduled drills occur during a 1 year period. 

13.  Army Regulation 135-178 (Enlisted Administrative Separations) states that a Soldier may be discharged for misconduct and the Soldier is unqualified for further military service by reason of one or more minor disciplinary infractions.  
  
14.  Army Regulation states an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.    

15.  In reaching its determination, the Board should consider the applicant's petition, his service record, and his statements 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 applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of 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.




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.  National Guard Regulation 600-200 (Enlisted Personnel Management) establishes standards, policies, and procedures for the management of the Army National Guard
(ARNG) and the Army National Guard of the United States (ARNGUS) enlisted Soldiers.     The regulation covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the State Army National Guard.  It contains guidance stating individuals can be separated for being an unsatisfactory participant.    

3.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Provisions) states, in pertinent part, a Soldier is an unsatisfactory participant when nine or more unexcused absences from scheduled drills occur during a 1 year period.

4.  Army Regulation 135-178 (Enlisted Administrative Separations) sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the ARNGUS and U.S. Army Reserve enlisted Soldiers for a variety of reasons.  It contains guidance that states a Soldier may be discharged for misconduct and the Soldier is unqualified for further military service by reason of one or more minor disciplinary infractions or a pattern of misconduct.  
5.  Army Regulation states: 

     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.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

6.  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.  

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160016802
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