ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 April 2019 DOCKET NUMBER: AR20170000318 APPLICANT REQUESTS: His general discharge be upgraded to an honorable discharge. 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) * DD Form 214 (Report of Separation from Active Duty), for the period 16 June 1978 * DD Form 257A (General Discharge Certificate) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, Section 1552 (b); 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, while he was in the military he fell asleep in a tactical vehicle. This was the cause of him getting an under honorable conditions discharge. In effect, his commanding officer wanted him out of the military. He wanted to stay in the military; however, his commanding officer threatened him with a dishonorable discharge if he didn’t accept an under honorable conditions discharge. 3. The applicant was notified by his immediate commander, on or about 17 May 1978, that he was initiating actions to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-37 (Expeditious Discharge Program (EDP)). As reasons for the proposed separation actions, the applicant's commander cited his inability to adapt socially and emotionally to the Army environment; his failure to demonstrate promotional potential; his inability to follow instructions of directions from superiors; and his lack of cooperation with peers, all of which had hampered his ability to adjust to military life. 4. The applicant acknowledged notification of his proposed separation from the Army on 22 May 1978. After consulting with counsel, he voluntarily consented to the separation and elected not to submit a statement in his own behalf. He further acknowledged that: * he understood he could expect to encounter substantial prejudice in civilian life if he were issued a general discharge under honorable conditions * he was provided the opportunity to consult with an officer of the Judge Advocate General's Corps * he understood that he may, prior to the date the discharge authority approves his discharge, withdraw his voluntary consent to the discharge * if he declined to accept the discharge voluntarily, he could be subject to separation at a future time under other provisions of law or regulation if his conduct so warranted 5. The applicant's immediate commander formally recommended his separation under the provisions of Army Regulation 635-200, paragraph 5-37 (EDP). The separation authority approved the separation action on 13 June 1978 and directed the issuance of a General Discharge Certificate. 6. The applicant was discharged on 15 June 1978. His DD Form 214 confirms his service was characterized as under honorable conditions. 7. The Board should consider the applicant's statement 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 documentary evidence presented by the applicant and found within the military service record, the Board found insufficient justification to change the characterization of service. The Board concluded that the characterization of service received at the time of discharge was appropriate based upon the misconduct which resulted in the applicant’s discharge. BOARD VOTE: Member 1 Member 2 Member 3 : : : Full Grant : : : Partial Grant : : : Formal Hearing Grant X X X Deny 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, U.S. Code, 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 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 5-37 of the regulation in effect at the 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. No individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge. Individuals discharged under this provision of the regulation were issued either a general or honorable discharge. 3. 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 a. 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.