ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 May 2019 DOCKET NUMBER: AR20170002483 APPLICANT REQUESTS: an upgrade to his under honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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. A review of the applicant’s service record shows: a. Having had prior service in the Army Reserves Control Group Delay Entry Program, he enlisted in the Regular Army on 26 December 1973. b. He received nonjudicial punishment (NJP) on: * 31 May 1974, for being absent without leave (AWOL) on 20 through 27 May 1974 * 14 May 1975, for failure to go to the prescribed place of duty, his punishment consisted, in part of 30 days at correctional custody facility (suspended until 13 June 1975) * 30 May 1975, the punishment of 30 days at correctional custody facility was set aside and all rights, privileges, and property affected restored on the punishment imposed on 14 May 1975 c. DA Form 4187 (Personnel Action) shows on: * 25 September 1975, AWOL on 20 September 1975 * 28 September 1975, present for duty on 27 September 1975 d. He was convicted by special court-martial and charged with one specification of a. AWOL from 20 through 27 September 1975. He was confined at hard labor for 40 days and reduced to E-1. e. The applicant was released from military confinement on 28 November 1975. f. His military record is void of documentation (the commander’s recommendation) for the chapter proceeding. g. The applicant underwent a medical examination for separation on 18 December 1975, the examiner determined that he was qualified for separation. h. The separation authority approved the applicant’s discharge under the provisions of AR 635-200 (Personnel Separations), paragraph 5-37, for failure to meet acceptable standards for continued military service and directed that he receive a general discharge certificate. i. He was discharged on 29 December 1975 under the provision of AR 635-200 paragraph 5-37, and his characterization is under honorable conditions. His DD Form 214 (Report of Separation from Active Duty) shows that he had 1 year, 9 months and 19 days active service this period. He had 75 days lost time. 3. 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 for: poor attitude, lack of motivation, lack of self- discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. It also state that 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. 4. 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. 1. BOARD DISCUSSION: After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the short term of service completed prior to multiple UCMJ violations, as well as a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to his discharge, 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. 5/28/2019 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 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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). c. Paragraph 1-9f (Undesirable discharge) states an undesirable discharge is an administrative separation from the Service under conditions other than honorable. It may be issued for unfitness, misconduct, homosexuality, or for security reasons 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, 1. 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.