ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE: 20 May 2019 

	DOCKET NUMBER:  AR20160017857


APPLICANT REQUESTS:  Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Dockets Number AC85-05066 and AR20150008136, on 15 October 1986 and 17 May 2016, respectively.  Specifically, he requests:

	a.  His under honorable conditions (general) discharge be upgraded to an honorable discharge.

   b.  Correction of his DD Form 214 (Report of Separation from Active Duty), for the period ending 23 June 1978, to show:
   
   	(1)  he held military occupational specialty (MOS) 76P1O (Stock Control Clerk) as a secondary MOS (SMOS);
   
   	(2)  he completed his high school education; and

	(3)  he was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and the "Presidential Citation."

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10 U.S. Code Section 1552), dated 4 August 2016
* a self-authored memorandum for the President, Department of the Army Suitability Evaluation Board, and for the Secretary of Defense, dated 5 August 2016
* Driver License, Department of Veterans Affairs (VA) Identification Card, Medicare Card, and Social Security Card
* Supreme Court of the United States Case Number 17-9032 Affidavit, dated 8 August 2018




FACTS:

1.  Incorporated herein by reference are military records which were summarized in the previous considerations of the applicant's case by the ABCMR in Dockets Number AC85-05066 and AR20150008136, on 15 October 1986 and 17 May 2016, respectively.

2.  The applicant states:

	a.  The signer of his DD Form 214 is not of his former unit.  The signer of his 
DD Form 214 was an enlisted grade Soldier or lower, which makes his discharge erroneous.  The DD Form 214 is not supposed to be signed by anyone other than the commander.

	b.  "See 1-28 Discharge or Release from active duty prior to expiration of time of service (a.) When separation is to be completed before (End of Time Served), or the period for which ordered it will be completed per this regulation or other applicable regulations by the commander (Not the Sergeant of Arms) specified in paragraph 1-19.  Exceptions indicated in (b) and (c) below…"

	c.  He was 15 years old when he was asked to either leave high school or be discharged for being too young to work without a family support system.  He walked the streets of Lexington, Kentucky for what seemed like two years without a job, then he suddenly got a job a Kroger's grocery store.  Shortly after turning 17 years old, he asked his dad to sign the parental consent form.  It only took him one semester to graduate from high school.  Although he needed two more credits, he got his General Educational Diploma instead.

3.  The applicant enlisted in the Regular Army on 29 September 1976, completed training, and was awarded MOS 76D1O (Materiel Supply Specialist).

4.  The applicant's record contains seven negative counseling statements for offenses including but not limited to: displaying disrespect toward a noncommissioned officer; failure to go to his appointed place of duty; poor personal hygiene; poor attitude; poor work performance; failure to maintain the cleanliness of his quarters; and alcohol-related incidents.

5.  The applicant was arrested by civilian authorities on 5 April 1978, for disorderly conduct, and on 8 April 1978, for driving while intoxicated and driving without a license. 

6.  A DA Form 2496-1 (Disposition Form), dated 10 April 1978, shows the applicant’s company commander counseled him as a result of his arrest on 8 April 1978.  The form shows the company commander "advised/directed" the applicant to "report to the half-way house for alcoholic counseling" and he was advised that "continuing behaviour [sic]" would result in him "being a candidate for early discharge because of [his] anti-social behaviour [sic], lack of motivation [and] poor job performance."  The applicant did not sign the form.

7.  The applicant accepted nonjudicial punishment (NJP) on 23 May 1978, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for possessing 1/2 ounce of marijuana.  He acknowledged receipt of the of the Article 15 and he acknowledged that he was afforded the opportunity to consult with legal counsel prior to making the decision to accept the Article 15.  His punishment was reduction to pay grade E-1 and 7 days of restriction.

8.  The applicant's commander notified the applicant on 15 June 1978 that he had initiated actions to elimination him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-13, under the Expeditious Discharge Program (EDP).  The applicant acknowledged receipt of the proposed separation memorandum on 16 June 1978 and made an election to voluntarily consent to a discharge.

9.  The applicant's commander formally recommended his separation from service under the provisions of Army Regulation 635-200, paragraph 5-13.  The separation authority approved the discharge recommendation and directed the applicant receive a General Discharge Certificate. 

10.  The applicant was discharged on 23 June 1978, under the provisions of Army Regulation 635-200, paragraph 5-13, for failure to maintain acceptable standards for retention.  The DD Form 214 he was issued confirms he completed 1 year, 8 months, and 25 days of net active service this period, his service was characterized as under honorable conditions, and he was issued a General Discharge Certificate.  Additionally, his DD Form 214 shows:

* his primary specialty number and title as "MOS as 76D10 (Material Supplyman)"
* his secondary specialty number and title as "None"
* his highest education level successfully completed as "Secondary/High School 10 years" and "College 0 years" 
* he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar

11.  There is no documentary evidence in the available record that indicates he was awarded or authorized the Sharpshooter Marksmanship Qualification Badge or the Presidential Unit Citation.

12.  Army Regulation 635-5, in effect at the time of the applicant's separation, governed the proper completion of the DD Form 214.

13.  Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.

14.  The Board should consider the applicant's provided statement in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, his statement and supporting documents, evidence in the record and published guidance for consideration of discharge upgrade requests.  The Board noted his multiple counseling statements, Article 15 and civilian arrest prior to his discharge, but did not find any mitigating factors for his misconduct, determined that his current character of service was appropriate and that clemency was not warranted. The Board did not find any evidence that he was awarded any MOS other than 76D10 or that he was awarded or authorized the Sharpshooter Marksmanship Qualification Badge or the Presidential Unit Citation at the time of his separation.  The Board did determine that the evidence was sufficient to show that he completed his GED and it should be reflected on his DD Form 214.

2.  After reviewing the application and supporting documents, the Board determined that partial relief was warranted.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:X	:X	:X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION









BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 23 June 1978 by reflecting the appropriate level of education as required for completion of a GED.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrade of his discharge, adding a secondary MOS, adding a Sharpshooter Marksmanship Qualification Badge or a Presidential Citation.
 

 


	 
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 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 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice.  Chapter 3 states that a commander will personally exercise discretion in the non-judicial process by evaluating the case to determine whether proceedings under Article 15 should be initiated; determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial; and determining the amount and nature of any punishment if punishment is appropriate.

3.  Army Regulation 600-8-22 (Military Awards) provides Department of the Army policy, criteria, and administrative instructions concerning individual military decorations.  It states:

   a.  The qualification badge was awarded to indicate the degree – Expert, Sharpshooter, and Marksman – in which an individual had qualified in a prescribed record course.  An appropriate bar was furnished to denote each weapon with which the individual had qualified.  

	b.  The Presidential Unit Citation (known as the Distinguished Unit Citation until 3 November 1966) was awarded for extraordinary heroism in action.  A unit must have displayed such gallantry, determination, and esprit de corps in accomplishing its mission as would warrant award of the Distinguished Service Cross to an individual. 

4.  Army Regulation 635-5 (Separation Documents), then in effect, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for the preparation of the DD Form 214.  The regulation stated:

   a.  The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provided a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  In pertinent part, it directed that the titles of all MOS or area of concentration (AOC) served in for at least one year be entered on the DD Form 214) and would include the number of years and months served.  

   b.  The Separation Transfer Activity (STA) will prepare the worksheet when members are being separated under conditions which prelude preprocessing and preparation of worksheets at the last duty assignments.  The STA will prepare the DD Form 214 from the worksheet.

5.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 5-37 of the regulation in effect at that time provided for the discharge of enlisted personnel who had completed at least 6 months but less than 36 months of active duty and who had demonstrated that 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 the EDP unless the individual voluntarily consented to the proposed discharge.  Individuals discharged under this regulation were issued either a general or honorable discharge.

6.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds.  

	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, Boards 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)	 AR20160017857


5


1