ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  13 June 2019

	DOCKET NUMBER:  AR20170008238


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).

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

	a.  He enlisted in the Regular Army on 24 April 1980.

	b.  He accepted nonjudicial punishment on/for:

* 29 March 1982, for failing to go to his appointed place of duty
* 8 July 1982, for sleeping on duty

	c.  On 9 September 1982, his immediate commander initiated action to separate the applicant under the provisions of paragraph 5-31 (Expeditious Discharge Program), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations).  He recommended the applicant’s service be characterized as general, under honorable conditions.

	d.  On 9 September 1982, the applicant acknowledged notification of his proposed separation under the provisions of paragraph 5-31, AR 635-200.  He elected not to submit statement in his own behalf.  He further acknowledged:

* if his service was characterized as under honorable conditions, he may expect to encounter substantial prejudice in civilian life
* there is no automatic upgrading nor review by any government agency of a characterization of service which is under honorable conditions and he must apply to the Army Discharge Review Board or the Army Board for Correction of Military Records
* he would not be permitted to apply for enlistment in the Army within 2 years from the date of his separation

	e.  Consistent with the chain of command recommendation, on 30 September 1982, the separation approval authority approved the applicant’s discharge under the provisions of AR 635-200, chapter 5-31.  He would be furnished an Under Honorable Conditions Discharge Certificate.

	f.  He was discharged from active duty on 19 October 1982.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 5 months, and 26 days of active service.  It also shows he was discharged under the Expeditious Discharge Program with a general, under honorable conditions characterization of service.  He was awarded or authorized:

* Army Service Ribbon
* Sharpshooter Marksmanship Qualification Badge (M-16)
* Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar

3.  By regulation, members who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army because of existence of one or more of the following conditions may be separated when they have failed ot respond to counseling:

* poor attitude
* lack of motivation
* lack of self-discipline
* inability to adapt socially or emotionally
* failure to demonstrate promotion potential

4.  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, 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 (AR) 635-200 (Personnel Separations – Enlisted Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-13a (Honorable Discharge) states an honorable discharge is a separation with honor.  Issuance of an Honorable Discharge Certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude.

	b.  Paragraph 5-31 of that regulation governs the Expeditious Discharge Program.  It states members who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army because of existence of one or more of the following conditions may be separated when they have failed ot respond to counseling:

* poor attitude
* lack of motivation
* lack of self-discipline
* inability to adapt socially or emotionally
* failure to demonstrate promotion potential

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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The 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 on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.  

ABCMR Record of Proceedings (cont)	 AR20170008238


4


1