ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 March 2019 DOCKET NUMBER: AR20170000862 APPLICANT REQUESTS: * an upgrade of his under honorable conditions discharge * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Self-Authored Statement * DD Form 214 (Report of Separation from Active Duty) 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 that many years have gone by and he has matured and understands the errors that he made. He has been a productive member of society since his discharge and proud of his time in service to his country. He is asking the Board to please consider his request for an upgrade from general under honorable, to an honorable discharge. 3. The applicant provides: a. A self-authored statement which states it has been over 40 years and he believes he has paid his dues for being young and making some silly mistakes in his life that were not that serious at the time. b. He goes on to say that he had a first sergeant that was looking out for his future, so he feels with all his heart that he should be considered for an upgrade to an honorable discharge. He mentioned that, at that time in his life his mother was going through cancer treatment and he was not handling the stress very well. He missed a couple of formations and started drinking. His first sergeant called him into his office and made some suggestions and he submitted to what was said and took the under honorable discharge that he and the captain offered. 4. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army on 16 January 1975. b. He received nonjudicial punishment on: * 29 August 1975, for unauthorized absent * 21 January 1976, for missing movement * 23 August 1976, for failure to go to the prescribed place of duty * 27 August 1976, for failure to go to the prescribed place of duty, his punishment consisted, in part, of reduction to E-2 c. His service record contains five counseling statements on various offenses: * 13 July 1976, failure to report * 2 August 1976, disrespectful to a noncommissioned officer * 14 August 1976, failure to report to extra duty * 8 September 1976, failure to be in the proper uniform d. On 26 August 1976, the applicant’s immediate commander initiated discharge proceeding from the Army under the provision of chapter 5, Army Regulation 635-200. (Personnel Separations). He recommended a general discharge and cited the specific reasons: * lack of discipline * inability to adapt socially * failure to demonstrate promotion potential * inability to accept instructions and directions * clearly substandard performance e. The applicant acknowledged receipt of the notification of his proposed discharge from the Army. He elected not to submit a statement in his own behalf. f. Following acknowledgement, on 28 August 1976, the applicant’s commander recommended separation action against the applicant under the provisions of AR 635- 200. g. On 14 September 1976, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, paragraph 5-37 and directed that he receive a general discharge. h. The applicant was discharged from Army on 27 September 1976. His DD Form 214 shows he was discharged under the provisions of AR 635-200, chapter 5-37, and his service characterization is under honorable conditions. He completed a period of 1 year, 8 months, and 12 days. 5. The applicant applied to the Army Discharge Review Board (ADRB) and on 20 May 1982. The ADRB found his discharge proper and equitable, and denied his request. 6. By regulation, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 7. By regulation, discharges under this chapter provides that individuals who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army because of the existence of one of more of the following conditions, may be discharged: * Poor attitude * Lack of motivation * Lack of self-discipline * Inability to adapt socially or emotionally * Failure to demonstrate promotion potential 8. 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: 1. 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. The Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, U.S. Code, 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 Army Board for Correction of Military Records (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. Army Regulation (AR) 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. 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 regulation were issued either a general or honorable discharge. a. Paragraph 1-9d (Honorable discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). b. Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharged because of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. 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 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//