ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  31 October 2019

	DOCKET NUMBER:  AR20170001119


APPLICANT REQUESTS: an upgrade to his general, under honorable conditions discharge.

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)
* 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 state his son was premature and due to multiple health conditions, he was being called out of the field several times.  The situation was causing problems with his unit.  He reached out to his Chaplin and he suggested that he get out of the service with a discharge of under honorable conditions.  He was told that after 1 year, his discharge would be upgraded to an honorable.  He has been trying to get insurance and they are the ones that informed him that the upgrade never happened.  The insurance company would only accept an honorable discharge.  He appreciates any assistance with this matter.

3.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 8 December 1977.

	b.  On 7 September 1978, he accepted non-judicial punishment, under the provisions of Article 15, Uniform Code of Military Justice, for failing to be at his appointed place of duty on 7 September 1978.

	c.  On 29 December 1978, the applicant's immediate commander notified him that he was initiating action to separate him from the service, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 5 (Expeditious Discharge Program (EDP)), with a General Discharge Certificate.  As reasons for the proposed separation action, the applicant's commander cited his attitude to do only enough to get by and his continued marginal performance of duty are not in keeping with the standards of the military service 

	d.  On 29 December 1978, the applicant acknowledged receipt of the proposed separation notification and elected to submit a statement on his own behalf.  

	e.  His commander initiated action to separate him under the provisions of AR 635-200, Chapter 5, EDP, and recommended he receive a general discharge certificate.

	f.  Consistent with the commander’s recommendation, on 16 January 1979 the separation authority approved his request for discharge and directed the issuance of a general, under honorable conditions discharge.  

	g.  On 24 January 1979, the applicant was discharged from active duty under the provisions of AR 635-200, Chapter 5 for failure to maintain acceptable standards for retention (EDP) and issued a general, under honorable conditions discharge.  The applicant’s DD Form 214 shows he completed 1 year, 1 month and 17 days of total active service with no lost time.

4.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations.

5.  By regulation, enlisted personnel may be discharged, released from active duty or active duty for training, or released from military control, for the convenience of the government with service characterized as honorable or under honorable conditions, as appropriate.

6.  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.  Board members noted that it was his poor performance that got him to be separated.  The Board members did consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.  The reasons for his discharge were cited as his attitude to do only enough to get by and his continued marginal performance of duty are not in keeping with the standards of the military service.  All requirements of law and regulation were followed and his rights were fully protected throughout the separation process.  Based upon the documentary evidence provided by the applicant and found within the military service record, the Board concluded that the applicant received the appropriate characterization of service and voted to deny his request. 

   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 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 1-13a (Honorable) provides that an honorable discharge is a separation with honor.  Issuance of an honorable discharge will is predicated 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 1-13b (General) provides that a general discharge is a separation from the Army under honorable conditions.  It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

	c.  Chapter 5 (Separation For the Convenience of the Government) sets forth the conditions under which enlisted personnel may be discharged, released from active duty or active duty for training, or released from military control, for the convenience of the government with service characterized as honorable or under honorable conditions, as appropriate.

	d.  Paragraph 5-31 (Expeditious Discharge Program-EDP) of this section provides that members who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army because of existence of one or more of the following conditions may be separated when they have failed to respond to counseling:

* Poor Attitude
* Lack of Motivation
* Lack of Self Discipline
* Inability to adapt socially or emotionally
* Failure to demonstrate promotion potential

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 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)	 AR20170001119


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