ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 May 2019 DOCKET NUMBER: AR20170003517 APPLICANT REQUESTS: an upgrade of his other than 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). 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 he has matured and demonstrates consideration and awareness. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 5 February 1979. b. He served overseas in South Korea from 11 July 1979 to 8 July 1980. c. On 22 June 1979, he accepted nonjudicial punishment (NJP) for failure to go to morning detail. He was fined $60 for a period of 1 month, 7 days extra duty, and 7 days restriction. d. On 8 January 1980, he accepted NJP for failure to obey an order. He was fined $106, reduced to E-1 (suspended), 14 days extra duty, and 14 days restriction. e. On 19 March 1980, he accepted NJP for insubordinate conduct and striking a non-commissioned officer in the head. He was fined $228 per month for 2 months, 30 days extra duty, and 30 days restriction. f. On 4 May 1980, he accepted NJP for failure to go to work call formation and for failure to follow a lawful order on 3 separate occasions. He was fined $106 for 1 month, 14 days extra duty, and 14 days restriction. g. On 20 June 1980, he accepted NJP for failure to go to work call formation. He was fined $100 per month for 2 months, 30 days restriction or until date estimated return from overseas. h. On 20 June 1980, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 5-31, in effect at the time, under the Expeditious Discharge Program for misconduct, poor attitude, lack of self-discipline, and inability to follow instructions. i. On 24 June 1980, the applicant acknowledged receipt of the commander’s intent to separate him, subsequently, he consulted with legal counsel and did not submit statements on his own behalf. He was advised that he could expect to encounter substantial prejudice in civilian life if his service was characterized as under honorable conditions. j. Subsequent to the applicant’s acknowledgement, the immediate commander initiated separation action against him for his inability to adapt, which resulted in punishment under Article 15, UCMJ on five different occasions. k. The separation authority approved his discharge under the provisions of AR 635-200, Chapter 5, by reason of failure to adjust to the Army environment. l. The applicant was discharged on 9 July 1980. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 5 months, and 5 days of active service. It also shows he was awarded or authorized the Expert Marksmanship Qualification Badge with Rifle Bar. 4. By regulation, action will be taken to separate a Soldier when it is demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under AR 635-200, Chapter 5. 5. 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 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 a short term of service completed prior to a pattern of misconduct, some of which included violent behavior, 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. 5/21/2019 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. Army Regulation (AR) 635-200, (Personnel Separations – Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable distinction is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any characterization would be clearly in appropriate. b. Paragraph 3-7b (General Discharge) states 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. Chapter 5-31 of this regulation provides that under the Expeditious Discharge Program, soldiers who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army because of one or more of the conditions: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential may be separated when they have failed to respond to counseling. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct.