ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  20 June 2019

	DOCKET NUMBER:  AR20160018573


APPLICANT REQUESTS:  upgrade of her general discharge under honorable conditions to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Report of Separation from Active Duty)
* DD Form 257A (General Discharge Certificate)

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records:  Claims Incident Thereto).  However, the Army Board for Correction of Military Records (ABCMR) 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 she feels her discharge was unjust because, in effect, she feared for her decency.  

3.  The applicant's service records show:

	a.  She enlisted in the Regular Army on 15 March 1977.  Following initial training, she was assigned to Fort Rucker, AL; she arrived on 12 September 1978.

	b.  On three occasions, she accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for failing to go to her appointed place of duty at the time prescribed.  Her NJP, accepted 5 June 1978, included reduction from private first class to private/E-2.

	c.  On 19 July 1978, her commander notified her in writing of his intent to separate her under the provisions of paragraph 5-31 (Expeditious Discharge Program), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  The basis for this action was the applicant's demonstrated lack of self-discipline, motivation, and a continuous down fall in attitude and motivation.  In addition, the commander stated the applicant's attitude towards job responsibilities and her lack of concern for military justice was inferior to that of the average Soldier.  Her personal problems were of such a degree that continued military service would only cause her and her family more hardship.

	d.  On 24 July 1978, after consulting with counsel (a military attorney), she voluntarily accepted separation under paragraph 5-31, AR 635-200.  She elected not to submit a statement in her own behalf. 

	e.  On 27 July 1978, the separation authority approved the commander's recommendation and directed the applicant's general discharge under honorable conditions; on 28 July 1978, she was discharged accordingly.  Her DD Form 214 showed she was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  The applicant contends her discharge was unjust because, in effect, she feared for her decency.  In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published 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.  She did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the pattern of misconduct and the applicant already receiving a general discharge, the Board concluded that there was insufficient evidence of an error or injustice which would warrant making a change to the characterization of service.

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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  

2.  AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations.

	a.  Paragraph 1-13a (Honorable Discharge).  An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance.  Commanders were to give due consideration to the Soldier's age, length of service, and general aptitude.  Where there were infractions of discipline, commanders were to assess the extent of those infractions as well as the seriousness of the offenses.

	b.  Paragraph 5-31 (Expeditious Discharge Program).  Commanders could discharge Soldiers under this program when they demonstrated they could or would not meet the Army's accepted standards for enlisted personnel.  Soldiers was separated unless they voluntarily accepted separation and they could receive an honorable or an under honorable conditions (general) character of service.  An under honorable conditions discharge could only be issued if the Soldier was permitted to consult with counsel.

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.  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.  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)	 AR20160018573


3


1