ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  22 April 2019

	DOCKET NUMBER:  AR20160016960


APPLICANT REQUESTS:  The applicant requests his discharge under honorable conditions (general) be upgraded to an honorable discharge.

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 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 submits a DD Form 149 and DD Form 293, he states the Army did not follow procedures.  He was accused of something he did not do.  He was discharged without reason and was denied his rights to fulfill his duties as a Soldier and to serve his country.

3.  On 29 September 1972, at the age of 20 years old, the applicant enlisted in the Regular Army.  The applicant completed basic training.  On 18 December 1972, he arrived at Fort Polk, LA to attend advanced individual training.

4.  On 24 January 1973, the applicant’s immediate commander notified the applicant that he was initiating separation actions against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5b(3) for unsuitability.  

5.  In connection with his separation he received a mental status examination which indicated that the applicant had no significant mental illness and he met the retention standards prescribed in AR 40-501 (Standards of Medical Fitness), Chapter 3. 

6.  The applicant acknowledged he had been notified of the pending separation action against him and he had been advised by counsel of the basis for the contemplated action, understood his rights, and elected not to submit a statement in his own behalf.

7.  On 24 January 1973, the applicant was interviewed by a chaplain.  The chaplain stated, in pertinent part, the applicant felt he had been treated fairly and counselled enough by his company commander.  He does not desire to remain in the Army.  He felt the Army was not for him.  

8.  The immediate commander completed his recommendation for separation which states and/or shows:  

   a.  The applicant was a member of the unit for 4 weeks.  During that time, his attitude, efficiency, conduct, and overall appearance was consistently poor and unsatisfactory.  He was counselled repeatedly and failed to improve in any area.  
   
   b.  He had not met any of the criteria for retention in the Army.  He constantly performed all his tasks in a substandard manner.  He complained of his inability to adjust to Army life.  In his opinion, the applicant cannot adapt or adjust at all to Army life.  He did not feel the applicant had the capability to perform the tasks required of a Soldier of his grade.  A rehabilitative transfer would not help him adjust or adapt to Army life.  His inability was at the level of basic Soldiering, he resisted counseling, lacked discipline, and he had no respect for authority or his fellow Soldiers.
   
   c.  He was counselled on 4 occasions between 11 January 1973 and 20 January 1973.  His conduct between 9 October 1972 and 8 December 1972 was excellent and unsatisfactory from that period on.  He had no record of court-martial or Article 15, UCMJ (Uniform Code of Military Justice).

9.  The chain of command recommended approval of the recommendation for separation.  On 29 January 1973, the appropriate commander approved the recommendation for separation, directing the applicant be issued a General Discharge Certificate.

10.  On 6 February 1973, the applicant was discharged under the provisions of AR 635-200, chapter 13.  His service was characterized as under honorable conditions.  He completed 4 months and 8 days of total active service.  His DD Form 214, (Armed Forces of the United States Report of Transfer or Discharge) he was discharged as a trainee.  The form also shows he was awarded or authorized the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

11.  The applicant states he was accused of something he did not do.  He was discharged without reason and was denied his rights to fulfill his duties as a Soldier and to serve his country.  His record shows that he enlisted at the age of 20 and was discharged after 4 months and 8 days in service as a trainee.  

12.  AR 635-200 provided an individual separated because of unsuitability will be furnished an honorable or general discharge certificate as warranted by his military record.

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

BOARD DISCUSSION:

After reviewing the application and supporting documents, the Board determined that relief was not warranted.  Based upon the discharge being initiated within the first 180 days of service, the Board concluded the applicant should have received an uncharacterized discharge characterization; however, because he already received a General discharge and the Board did not want to put the applicant in a worse position than when applied, the Board recommended denying the applicant’s request for relief.

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, provided for the separation of enlisted personnel from the Regular Army.  It states:

	a.  Chapter 13 established policy and prescribed procedures for separating Soldiers for unfitness or unsuitability.  Paragraph 13-5b(3) under the provisions of unsuitability, provided, in pertinent part, an individual would be subject to separation if he or she exhibited behaviors of apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively.  While lack of appropriate interest or other defective attitudes may be manifested in conjunction with physical defects or mental or organic diseases, including psychoneurosis, these traits are not necessarily produced by the physical or disease process.  On the other hand, individuals considered for elimination may attempt to excuse immature, inadequate, and undisciplined behavior on the basis of minor or nondisabling illnesses.  The presence of a physical or mental disease or defect-producing impairment of function insufficient to warrant separation under the provisions of AR 685-40 (Physical Evaluation for Retention, Retirement, or Separation) and related regulations is no bar to discharge for unsuitability.

	b.  An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is conditioned upon proper military behavior and proficient performance of duty during the Soldier's current enlistment of current period of service with due consideration for the Soldier’s age, length of service, grade, and general aptitude.

	c.  An individual separated because of unsuitability will be furnished an honorable or general discharge certificate as warranted by his military record.

5.  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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant.


ABCMR Record of Proceedings (cont)	 AR20160016960


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