ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  3 June 2019

	DOCKET NUMBER:  AR20170008116


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)

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 joined the military to go to Vietnam, but was sent to Korea instead.  

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

	a.  He enlisted in the Regular Army on 31 January 1973.

	b.  He served overseas in Korea from 14 June 1973 until 14 June 1974.

	c.  He accepted non-judicial punishment (NJP) on 22 April 1974 for failing to obey a lawful order to have his hair cut prior to the appointed time.  

	d.  He accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 22 May 1974 for wrongfully having in his possession 18 grams, more or less, of marijuana.  

	e.  On 4 September 1974, he departed his unit in an absent without leave (AWOL) status and remained absent until 5 September 1974.  He accepted NJP under the provisions of Article 15, UCMJ.

	f.  On 15 November 1974, he departed his unit in an AWOL status and remained absent until 30 November 1974 and received NJP under the provisions of Article 15, UCMJ.  His punishment was a reduction to private/E-2.

	g.  On 3 December 1974 to 8 December 1974 and again on 10 December 1974 until 15 December 1974, he left his unit in an AWOL status.  He accepted NJP on 
17 December 1974 and was reduced to private/E-1.

	h.  On 13 January 1975, he departed his unit in an AWOL status and remained absent until 15 January 1975.  He accepted and NJP under the provisions of Article 15, UCMJ.

	i.  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.

	j.  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.

	k.  On 6 January 1975, the applicant was recommended for separation by his subsequent commanders.  The separation authority approved his separation on             7 February 1975 and directed the issuance of a general, under honorable conditions character of service discharge.

	l.  The applicant was discharged on 20 February 1975 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 2 years and 3 days with lost time from 15 – 19 November 1974, 3-7 December 1974, 10-14 December 1974, and 13-14 January 1975.  He was awarded or authorized:

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

4.  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.  

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, as well as a lack of character evidence to show that the applicant has learned and grown from the events leading to his discharge, 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 Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-13d 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 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.
 

ABCMR Record of Proceedings (cont)	 AR20170008116


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