ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  19 June 2019

	DOCKET NUMBER:  AR20170004241


APPLICANT REQUESTS: an upgrade of his under honorable conditions discharge to honorable discharge and all of his military records

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 (Certificate of Release or Discharge 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 because he served honorably 38 years ago and was young, inexperienced, and immature during that time, he would now like to request an upgrade to an honorable discharge.  He does not have any excuses and made some mistakes but, he did a lot of good while serving.  He requests to have all of his military records sent to him.  He is incarcerated at this time and gets released on 13 October 2018 according to the applicant.  He would like all of the results as soon as possible. 

3.  A review of his service records show:

	a.  He enlisted in the Regular Army on 17 September 1979.

	b.  He accepted nonjudicial punishment under Article 15 on/for:

* 31 January 1980, willfully disobeying a lawful order from a Noncommissioned Officer (NCO), his punishment included forfeiture of $50 a month for one month and 14 days of extra duty
* 19 March 1980, willfully disobeying a lawful order from an NCO, his punishment included forfeiture of $299 per month for 2 months

	c.  On 19 March 1980, the applicant’s immediate commander notified him he was initiating separation action against him in accordance with Army Regulation (AR)
635-200 (Personnel Separations-Enlisted Separations), paragraph 5-31, expeditious discharge program (EDP) with an under honorable conditions discharge for chronic history of Uniform Code of Military Justice actions, apathy in duty performance, inability to demonstrate minimum level of proficiency, and lack of willingness to improve performance.  The applicant acknowledged receipt of the notification and affirmed that the commander’s reasons for proposed actions are due to applicant’s:

* poor attitude
* lack of motivation
* lack of self-discipline
* inability to adapt socially
* inability to adapt emotionally
* failure to demonstrate promotion potential 
* commander’s initiating actions are due to applicant’s: quitter attitude, hostility toward the Army, clearly substandard performance and lack of cooperation with peers and superiors

	d.  On 19 March 1980, he acknowledged notification of the proposed separation action and consulted with legal counsel.  He was advised of the basis for the contemplated separation action under the provisions of paragraph 5-31 of AR 635-200.  He acknowledged:

* the effect on future enlistments in the Army, the possible effects of a general discharge, and of the procedures and rights that were available to him
* he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life
* he did not desire a statement for rebuttal on his own behalf

	e.  On 19 March 1980, the separation/convening authority approved separation under the provision of AR 635-200, paragraph 5-31 expeditious discharge program with a general discharge.  

	f.  On 9 April 1980, the applicant was discharged from active duty under the provisions of Army Regulation (AR) 635-200, paragraph 5-31 expeditious discharge program (EDP) with a general discharge.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 6 months and 22 days of active duty service.  

4.  By regulation, AR 635-200, members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the EDP.  

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.

BOARD DISCUSSION:

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.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon short term of service prior to a pattern of misconduct, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

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 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, sets for the basic authority for separations 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.  When a member’s service is characterized as a general, except when discharge by reason 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 635-200 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.

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

ABCMR Record of Proceedings (cont)	 AR20170004241


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