ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 June 2019 DOCKET NUMBER: AR20170006935 APPLICANT REQUESTS: an upgrade of his characterization of service from under honorable conditions 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. The applicant states, that at the time of his service, he was young and going through hardships, where family ties were very close. The separation put tremendous hardships on his family, which transferred those hardships to him. He was young and did not always handle the pressure well. He states he received a letter from the Army stating that after six months his discharge would be upgraded to Honorable, yet it never happened. This was one of the conditions of his discharge. 3. A review of the applicant’s service record shows: a. He enlisted on 25 November 1974, in to the Regular Army (RA). He served in Korea from 28 June 1975 to 30 July 1976. b. On 21 June 1976, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 for using disrespectful language to a superior noncommissioned officer (NCO). His punishment consisted, in part, reduction to E-1/PVT. c. On 14 June 1976, his immediate commander notified him that action was being initiated to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 13 (Separation for Unfitness or Unsuitability). d. On 18 June 1976, he acknowledged receipt of notification of the commanders intent to separate him under the provisions of AR 635-200, chapter 13, based on misconduct. e. Subsequent to the applicant's acknowledgement, the immediate commander formally initiated separation action against the applicant under the provisions of AR 635-200, chapter 13-5a(1) (Unfitness - Frequent incidents of a discreditable nature with civil or military authorities). f. The chain of command reviewed the separation recommendation and on 30 June 1976, recommended approval of the separation under the provisions of chapter 13 of AR 635-200. g. His DD Form 458 (Charge Sheet) indicates court marital charges were preferred on 9 July 1976. He was charged with one specification each of disrespect, assault, wrongfully throwing rocks at the unit dining facility, and breaking restriction. He was also charged with two specifications of communicating a threat. h. On 14 July 1976, his immediate commander recommended trial by Special Court Martial. His chain of command recommended trial by Special Court Martial on 15 July 1976. i. On 26 July 1976, he was advised by counsel of the basis for the contemplated separation under the provisions of Chapter 13, AR 635-200 for Misconduct. He waived consideration of his case by a board of officers, a personal appearance before a board, and legal representation. j. On 27 July 1976, following a legal review for legal sufficiency, the separation authority approved the recommendation for separation for misconduct and ordered a General Discharge Certificate issued. He also waived further rehabilitative and counseling requirements. k. On 3 August 1976, the applicant was discharged from active duty under the provisions of AR 635-200, Chapter 13-5b(3) with a general under honorable conditions characterization of service. He completed 1 year, 8 months, and 9 days of active duty service. He was awarded or authorized a Sharpshooter Marksmanship Badge with Rifle Bar. 4. By regulation, separations under the provisions of AR 635-200, chapter 13 provides policy and prescribes procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service 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 the record showing a pattern of misconduct and some involving misconduct involving destructive behavior, 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 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 13 provides policy and prescribes procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service b. An honorable discharge is a separation with honor and 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. Where a member has served faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks, he may be furnished an honorable discharge. c. 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. 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) AR20170006935 4 1