ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  12 November 2019

	DOCKET NUMBER:  AR20170005247


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	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 states he requests an honorable discharge for Veteran’s benefits 
purposes.

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

	a. He enlisted in the Regular Army on 17 July 1974.

	b.  He accepted non-judicial punishment (NJP) under the provisions of Article 15, 
Uniform Code of Military Justice (UCMJ), on three different occasions for:

*	failure to obey a lawful order on 22 July 1975
*	being absent from his duty station without an Armed Forces Liberty Pass 
on 3 October 1975
*	wrongfully have in his possession 600 grams, more or less, of marijuana

	c.  On 14 December 1975, the applicant's immediate commander notified him of 
his intent to initiate separation proceedings against him under the provisions of 
chapter 13 of Army Regulations (AR) 635-200 (Personnel Separations-Enlisted 
Separations) for unsuitability.  The commander advised him of his rights to counsel, 
and provided him an opportunity to submit statements on his behalf.

	d.  On 1 March 1976, the applicant signed the acknowledgement of notification, 
waived his rights to counsel and waived the consideration of his case by an 
administrative separation board.  He did not provide a statement on his behalf.

	e.  The applicant was recommended for separation by his subsequent 
commanders.  The separation authority approved his separation on and directed the 
issuance of a general, under honorable conditions character of service discharge.

	f.  The applicant was discharged on 15 March 1976 under the provisions of AR 
635-200, chapter 13, paragraph 13-5b, with a reason for discharge as unsuitability.  
His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 
year, 7 months and 29 days 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, AR 635-200, action will be taken to separate an individual for 
unsuitability when it is clearly established that it is unlikely that he will develop 
sufficiently to participate in further military training and/or become a satisfactory 
soldier.  

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, to include the DoD 
guidance on liberal consideration when reviewing discharge upgrade requests, the 
Board found relief was not warranted.  Based upon the short term of honorable 
service completed prior to a pattern of misconduct, the Board concluded that the 
characterization of service received at the time of separation 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.

	  
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 Separations), in effect 
at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-13d (Honorable) provides that 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 1-13e (General) states 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 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.

	c.  Paragraph 13.  This chapter establishes policy and provides procedures and 
guidance for eliminating enlisted personnel found to be unfit or unsuitable for further 
military service.

	d.  Paragraph 13-2b, of this version, in effect at the time, says that action will be 
taken to separate an individual for unsuitability when it is clearly established that it is 
unlikely that he will develop sufficiently to participate in further military training and/or 
become a satisfactory soldier.  

	e.  Paragraph 13-5b also says that an individual is subject to separation under 
the provisions of this chapter for unsuitability. 

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)	 AR20170005247

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