ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: bBARD DATE: 9 July 2019 DOCKET NUMBER: AR20170010475 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States * 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 would like an upgrade of his general under honorable conditions discharge be upgraded to obtain benefits. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 31 May 1977. b. He accepted nonjudicial punishment on/for: * 19 December 1978, for failure to be at his appointed place of duty, his punishment included forfeiture of $50.00 (suspended for 30 days), 14 days extra duty and 14 days restriction * 25 April 1979, for being Absent Without Leave (AWOL), his punishment included reduction forfeiture of $84.00 for one month and 14 days extra duty * 21 June 1979, for failure to be at his appointed place of duty, disobeying a lawful order his punishment included reduction to E3 and confinement to a correctional custody facility for 7 days * * 13 September 1979, for going AWOL, his punishment included reduction to E-1 (suspended for 6 months) and forfeiture of $209.00 c. On 27 November 1979, the applicant’s immediate commander initiated action to separate him under the provisions of chapter 13, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for unsuitability. d. On 5 December 1979, he was advised by counsel of the basis for the contemplated action to accomplish his separation for unsuitability under the provisions (UP) of chapter 13, AR 635-200, and its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights. He acknowledged: * he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he waived his appearance before a board of officers * he waived to submit a statement on his own behalf e. Consistent with the chain of command recommendation, on 12 December 1979, the separation approval authority approved the applicant’s discharge for UP of chapter 13, AR 635-200. He would be furnished a General Discharge Certificate. f. The applicant was discharged on 17 December 1979, in accordance with chapter 13, AR 635-200, with an under honorable conditions characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 6 months, and 13 days of active service with lost time from 16 April to 17 April 1979 and 4 September to 5 September 1979. He was awarded or authorized the Parachute Badge and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16). 4. By regulation, action will be taken to separate a Soldier for unsuitability when it is clear he will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier and he meets retention medical standards (AR 40- 501). 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. 1. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct and whether to apply clemency. The Board found no evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based upon a preponderance of evidence, to include the short term of honorable service completed prior to a pattern of misconduct, characterization of service, the Board determined that the applicant's discharge characterization was not in error or unjust as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. 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. 7/22/2019 X CHAIRPERSON Signed by: 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 provides that 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 1-13b provides 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. The member may have had frequent non-judicial punishments but not for serious infractions. c. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The provisions of the Table of Maximum Punishments, Section B, paragraph 127c MCM 1969 (Rev) are not applicable to requests for discharge pursuant to this chapter. The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court-martial convening authority. 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 1. 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. //NOTHING FOLLOWS//