ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:      7 May 2019

	DOCKET NUMBER:  AR20170004494


APPLICANT REQUESTS:  an upgrade of his under honorable conditions (general) to honorable.

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 records shows:

	a.  He enlisted in the Regular Army (RA) on 15 July 1974.  He served in Germany from 29 November 1974 to 4 July 1976.

	b.  He received nonjudicial punishment on/for:

* 16 September 1975, for failing to go to his appointed place of duty, his punishment included a reduction to private/E-2
* 20 October 1975, for violating a lawful general regulation

   c.  His immediate commander notified the applicant on 15 December 1975 of his intent to discharge him under the provisions of the expeditious discharge program.  The reason for his proposed action is the applicant displayed qualities not desired qualities of the Army.

   d.  He acknowledged receipt of the proposed separation on 15 December 1975.  He voluntarily consented to this discharge and indicated that he understood:

* if he was furnished a general discharge ,he may expect to encounter substantial prejudice in civilian life
* he had the opportunity to consult with legal counsel
* he waived statements on his own behalf

   e.  Consistent with the chain of command recommendation, the separation authority approved the applicants discharge on 2 January 1976.  He issued a General Discharge Certificate.

	f.  He was discharged from active duty on 7 January 1976 with a general, under honorable conditions.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of paragraph 5-37 (EDP) of Army Regulation 635-200 (Personnel Separations).  He completed 1 year, 5 months, and 23 days of active service.  It also shows he was awarded or authorized:

* National Defense Service Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)

3.  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 Army may be discharged.

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.

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 the short term of  service completed prior to a pattern of misconduct, the Board concluded that the characterization of service received at the time of discharge was appropriate.  For that reason, the Board recommended denying the applicant’s request for relief.

  
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 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 5-37 (Discharge for failure to demonstrate promotion potential) 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 Army may be discharged in accordance with the following criteria.  Discharge under the provisions of this paragraph is limited to:
   
* personnel who fail to be advanced to the grade of E-2 after 4 months of active duty
* personnel who fail to demonstrate potential to justify advancement to the grade of E-3 after attaining the normal time-in-service and time-in-grade criterion for promotion to grade E-3, without waiver

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.

ABCMR Record of Proceedings (cont)	 AR20170004494


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