ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 May 2019 DOCKET NUMBER: AR20160018828 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge to honorable conditions. 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 states he was advised by an incarcerated veteran that after 7 years of separation from service he is eligible to have discharge changed. He also needs a current DD Form 214 (Report of Separation from Active Duty) for identification purposes. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 5 April 1976. b. He received nonjudicial punishment on/for: * 9 July 1976, for being absent without leave (AWOL) from 1 July 1976 to 6 July 1976 * 1 December 1976, for stealing * 6 January 1977, for failing to obey a lawful order; his punishment included a reduction to private (PVT)/E-2 (suspended for 30 days) * 14 February 1977, for wrongfully possessing marijuana; his punishment included a reduction to PVT/E-2 * * 8 March 1977, for falsely signing a document c. The applicant’s immediate commander notified the applicant on 30 March 1977, of his intent to discharge him under the provisions of chapter 5, paragraph 5-37, Army Regulation (AR) 635-200 (Personnel Separations –Enlisted Personnel). d. He consulted with legal counsel on 30 March 1977, and was advised of the basis for his contemplated separation and its effects, the rights available to him and the effect of a waiver or his rights. He acknowledged receipt and consented to the proposed separation. He did not submit a statement on his behalf. e. Consistent with the chain of command recommendation, the separation authority approved the applicant's discharge on 6 April 1977 under the provisions of chapter 5, paragraph 5-37, AR 635-200. He furnished a General Discharge Certificate. f. He was discharged from active duty on 12 April 1977 with a general, under honorable conditions characterization of service. His DD Form 214 shows he completed 1 year and 3 days of active service with 5 days lost. It also shows he was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). 4. By regulation, personnel whose performance of duty, acceptability for the service, and potential for continued effective service fall below the standards required for enlisted personnel in the U.S. Army may be discharged. 5. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the short term of service completed prior to multiple UCMJ violations, the Board concluded that the characterization of service received at the time of discharge was appropriate 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. 5/13/2019 X CHAIRPERSON Signed by: 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. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge is conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 5-37 (Discharge for Failure to Demonstrate Promotion Potential) of the regulation states that personnel whose performance of duty, acceptability for the service, and potential for continued effective service fall below the standards required for enlisted personnel in the U.S. Army may be discharged. Discharge under the provisions of this paragraph is limited to: * personnel who fail to be advanced to the grade of E-2 after 4 months of active duty * personnel who fail to demonstrate potential to justify advancement to the grade of E-3 after attaining the normal time-in-service and time-in-grade criterion for promotion to grade E-3, without waiver 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 based on 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 1. 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.