ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  5 June 2019

	DOCKET NUMBER:  AR20170006686


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* 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 he was belittled for over a year by a racist non-commissioned officer while stationed in Giebelstadt, West Germany.  He was young and was told to take the discharge, not knowing the affects it would have on his future. 

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

	a.  He enlisted in the Regular Army on 20 July 1979.

	b.  He accepted nonjudicial punishment on/for:

* 20 November 1980 for disobeying a lawful order his punishment included forfeiture of $135.00 for one month, 14 days extra duty and 14 days restriction
* 8 January 1981 for disobeying a lawful order and 2 counts of being disrespectful his punishment included reduction to E-2, forfeiture of $142.00 for one month, 14 days extra duty and 14 days restriction
* 4 February 1981 for 3 counts of being disrespectful his punishment included reduction to E-1, 45 days extra duty and 45 days of restriction
* 6 May 1981 for unlawfully striking another Soldier, communicating a threat to another Soldier and disobeying a lawful order his punishment included reduction to E-1, forfeiture of $250.00 for two months, 45 days extra duty and 45 days restriction

	c.  On 4 November 1981, the applicant’s immediate commander initiated action to separate him under the provisions of chapter 13, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for unsuitability. The applicant also acknowledged receipt of the notification.

	d.  On 4 November 1981, he was advised by counsel of the basis for the contemplated action to accomplish his separation for unsuitability under the provisions (UP) of chapter 13, AR 635-200, and its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights.  He elected not to submit statements in his own behalf.  He acknowledged:

* he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* he waived his appearance before a board of officers
* he waived to submit a statement on his own behalf 
* he would be ineligible to apply for enlistment in the Army for a period of 
2 years after discharge

	e.  Consistent with the chain of command recommendation, on 
12 November 1981, the separation approval authority approved the applicant’s discharge for UP of chapter 13, AR 635-200.  He would be furnished a General Discharge Certificate.

	f.  The applicant was discharged on 23 November 1981 as a result of the elimination proceedings in accordance with chapter 13, AR 635-200, with an under honorable conditions characterization of service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 3 months, and 
26 days of active service with lost time from 1 September to 8 September 1981.  

      g. He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, Sharpshooter Hand Grenade and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  By regulation, action will be taken to separate a Soldier for unsuitability when it is clear he will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier and he meets retention medical standards (AR 40-501).

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, 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 a pattern of misconduct, some involving violent behavior and endangering others, 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.
	 
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, provided for separation of enlisted personnel:

	a.  Paragraph 3-7a (Honorable Discharge) states that an honorable discharge is a separation with honor:  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty.

	b.  Paragraph 3-7b (General Discharge) states that a general discharge is a separations from the Army under honorable conditions, it is issued to a member whose military records is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

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)	AR20170006686


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