ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 June 2019 DOCKET NUMBER: AR20170007533 APPLICANT REQUESTS: an upgrade of his under honorable conditions (general) to honorable 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 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 instructed to have his under honorable conditions discharge upgraded to honorable in which he failed to do so previously so he is now asking now to have an upgrade. He states that he had a few issues while in service and was asked if he wanted to get out from his company and battalion commanders. He states that they lied on him but some people make mistakes and he feels as though he should have stayed in service. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 1 November 1974. He held a military occupational specialty as a 76S (Automotive Repair Specialist). He was assigned to 1st Calvary Division Fort Hood, Texas. b. He received nonjudicial punishment under Article 15 on/for: * 3 March 1975, about 21:00 hours, wrongfully have in his possession a certain quantity, more or less of suspected marijuana * 9 April 1975, on or about 06:45 hours on 9 April 1975, without authority failed to go at the prescribed time to his appointed place of duty, to formation behind the building 2840, 15th Adjutant General Replacement Detachment, 1st Calvary Division, Fort Hood, Texas 76545 c. On 12 May 1975, the applicant received a summarized court-martial for disrespect to a superior noncommissioned officer, disrespect to a superior noncommissioned officer and he communicated a threat to a superior noncommissioned officer on or about April 23 1975. His punishment included a reduction to private/E1, 15 days of hard labor and restriction for 30 days. d. On 27 May 1975, the applicant’s immediate commander notified him of his intent to initiate separation action against him under the provisions of paragraph 5-37, AR 635-200 (Personnel Separations – Enlisted Personnel) for substandard job performance and attitude. e. On 27 May 1975, he acknowledged receipt of the proposed separation. 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 to submit a statement on his own behalf f. On 2 June 1975, consistent with the chain of command recommendation, the separation authority approved the applicants discharge. He issued a General Discharge Certificate. g. On 18 June 1975, he was discharged from active duty 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 7 months, and 18 days of active service. It also shows he was awarded or authorized: * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). 4. 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. 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 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 applicant already receiving an Under Honorable Conditions (General) discharge, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his separation, 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 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) AR20170007533 4 1