ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  26 September 2019

	DOCKET NUMBER:  AR20170001092


APPLICANT REQUESTS:  an upgrade of his general discharge to honorable.

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)
*	Letter of Support
*	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 (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 he would like to be upgraded so he will be eligible for 
Veterans Affairs Benefits.  When he enlisted he was hoping to be trained in a job he 
could use after his discharge.  Instead, he was assigned to an infantry unit as a 
mortar man.  After completing his training, he inquired about retraining in another 
military occupational specialty, but he was told he needed to complete his enlistment 
first, then he could apply.  Shortly after, he was offered the opportunity for early 
release from his enlistment and he accepted.  He did it because he was told he had 
to complete his full enlistment prior to retraining into another MOS with no 
guarantee.  After leaving the Army, he owned a concrete business for 30 years and 
was very successful.
 
3.  The applicant provides:

	a.  A letter of support, which states he has known the applicant for 26 years and 
he is an upstanding individual and citizen.  He is hardworking, dedicated and a 
Christian.

	b.  DD Form 214 (Certificate of Release or Discharge from Active Duty).
4.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 11 April 1975.

	b.  On 5 January 1976, the applicant’s immediate commander notified him of his 
intent to separate him under the provisions of DA message 111445Z Nov 74, which 
is void from the applicant’s service record.  The reasons are: Inability to adjust to 
military life, poor performance of duties, lack of initiative and habitual tardiness, and 
lack of cooperation with superiors and peers.

	c.  On 5 January 1976, the applicant acknowledged receipt of the notification of 
the separation action.  He also acknowledged:

*	he waived the right to submit a statement on his own behalf
*	if issued a General Discharge under honorable conditions he may expect 
to encounter substantial prejudice in civilian life
*	prior to the date the discharge authority approves his discharge, he may 
withdraw his voluntary consent to the discharge

   d.  On 6 January 1976, his battalion commander recommended the applicant be 
expeditiously discharged from the service.  Stating the applicant had demonstrated 
no promotion potential and has failed to adjust to the demands on a member of the 
military.  The applicant had severe family and emotional problems, which contributed 
directly to his poor performance.

   e.  On 12 January 1976, consistent with the chain of command 
recommendations, the separation authority approved the discharge recommendation 
and ordered the applicant to be separated from the Army, under the provisions of 
Army Regulation 635-200, paragraph 5-37, for failing to meet acceptable standards 
of continued military service and directed he be issued a General Discharge 
Certificate. 

   f.  He was discharged from active duty on 14 January 1976 with a general under 
honorable conditions character of service.  His DD Form 214 shows he completed    
9 months and 4 days of net active service and 1 month and 6 days of prior inactive 
service.

5.  There is no evidence the applicant has applied to the Army Discharge Review 
Board for review of his discharge within the Board’s 15 year statute of limitations.

6.  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 US Army may be discharged.

7.  The Board should 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, the Board found relief 
was not warranted. The Board considered the applicant’s petition and his service 
record in accordance with the published equity, injustice, or clemency determination 
guidance (DOD FY2018 Guidance).  Board members noted that the applicant 
acknowledged receipt of the notification of the separation action; he waived his right 
to submit a statement on his own behalf; and he consented.  All requirements of law 
and regulations were met and his rights were protected.  Based upon the short term 
of service completed prior to the separation and the justification provided by the 
command for the discharge, Board members found insufficient evidence of an error 
or injustice which would warrant making a change to the applicant’s 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 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in 
effect at the time, sets 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 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.

	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.

	c.  Paragraph 5-37 states 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 US Army may be discharged.

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 (BCMNRs) 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 court-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.  AR 635-200, in effect at the 
time, sets forth the basic authority for the separation of enlisted personnel.


NOTHING FOLLOWS

ABCMR Record of Proceedings (cont)	 AR20170001092

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