ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 6 September 2019 DOCKET NUMBER: AR20170009191 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) * General Discharge Certificate 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 would like his general discharge upgraded to an honorable. He was discharged on a hardship due to his spouse and his children, and his post commander was the only person that would not sign off on his honorable discharge. He feels that he had a perfect record with the Army and perfect evaluations with no blemishes. He had planned on making a career with the Army, but was unable to do so because of his hardship with his family, which was beyond his control. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 12 December 1977. b. On 29 February 1980, he received a letter of reprimand because he missed a movement on a training exercise due to him having to stay behind to take care of his children. c. He received counseling on 3 separate occasions, 11 February 1980, 27 February 1980 and 4 March 1980, regarding his inability to perform his military duties, due to him being the sole parent of his two small children. d. On 7 April 1980, the applicant was notified of his commander’s intent to initiate separation under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 5-40, and be issued a general, under honorable conditions discharge. The reasons for his proposed action was the applicant’s inability to perform prescribed duties due to parenthood, repetitive absenteeism due to parenthood and non-availability for worldwide assignment due to parenthood. e. On 7 April 1980, the applicant acknowledged receipt of the proposed separation notification and elected not to submit a statement on his own behalf. f. On 7 April 1980, his chain of command recommended he be discharged under the provisions of AR 635-200, Chapter 5-34, and receive a general under honorable conditions discharge characterization and be transferred to the Individual Ready Reserve. g. Consistent with the chain of command's recommendation, the separation authority approved his request for discharge under the provisions of AR 635-200, chapter 5, and directed the issuance of a general, under honorable conditions discharge and a transfer into the Individual Ready Reserve. h. On 23 April 1980, the applicant was released from active duty under the provisions of AR 635-200, Chapter 5-34d (1). His DD Form 214 shows he completed 2 years, 4 months and 12 days of net active service with no lost time. i. Orders issued on 30 August 1983 show he was to be discharged fropm the U.S. Army Reserve Control Group (Annual Training) effective 27 September 1983 and his service was to be characterized as general, under honorable conditions. 4. There is no evidence the applicant applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. He provides a General Discharge Certificate showing he was discharged under honorable conditions on 27 September 1983. 5. By regulation the separation of enlisted personnel for the convenience of the Government is the prerogative of the Secretary of the Army and will be accomplished only by his authority. Except as delegated by regulation or by special Department of the Army directives, the separation of any enlisted member of the Army for the convenience of the Government will be at the Secretary's discretion with issuance of an honorable or under honorable conditions character of service as determined by him. 6. The Board should 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 sufficient evidence to grant relief. The Board agreed that the applicant’s case warrants clemency. The applicant's misconduct appears to have been entirely the result of him becoming the sole parent of two small children. He was reprimanded for missing movement; however, the record is void of any evidence of additional misconduct or evidence indicating he received any punishment under the Uniform Code of Military Justice. While the separation authority acted within his authority by approving the characterization of the applicant's service as general, under honorable conditions, the preponderance of the evidence in this case supports upgrading the characterization to honorable. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant's DD Form 214 showing his service was characterized as honorable and issuing him an Honorable Discharge Certificate effective 27 September 1983 in lieu of the General Discharge Certificate he now holds. 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 1-13a (Honorable Discharge) provided that an honorable discharge is separation with honor. Issuance of an honorable discharge certify cate 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 1-13b (General Discharge) provided that a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. c. Paragraph 5 (Separation for the Convenience of the Government) sets forth the condition under which enlisted personnel may be discharged, released from active duty or active duty for training, or released from military control, for the convenience of the Government with service characterized as honorable or under honorable conditions as appropriate. d. Paragraph 5-34 (Inability to perform prescribed duties due to parenthood) prescribes procedures for separation because of in ability to perform prescribed duties, repetitive absenteeism or non-availability for worldwide assignment as a result of parenthood. e. Paragraph 5-34d (1) states that commanders are authorized to order separation under this paragraph when it is determined that the member has been unable to perform prescribed duties, has had repetitive absenteeism, or has been unavailable for worldwide assignment based on parenthood. 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) AR20170009191 5 1