ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  9 July 2019

	DOCKET NUMBER:  AR20170011000


APPLICANT REQUESTS:  

* Upgrade of his general under honorable conditions discharge to honorable
* Personal appearance before the Board


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 made a mistake.

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

a. He enlisted in the regular Army on 18 September 1973.

	b.  He served in Korea from 7 February 1974 to 3 February 1975.

	c,  He accepted nonjudicial punishment under Article 15 on/for:

* 26 October 1973 for sleeping on duty
* 12 November 1974 for failure to be at his place of duty; his punishment included reduction to private/E1

	d.  The applicant's immediate commander notified the applicant on 7 January 1975  that he intended to initiate action for his elimination from military service under the provisions of (AR) Army Regulation 635-200 (Enlisted Personnel – Personnel Separations), Chapter 5-37.  The commander recommended that the applicant be furnished a general discharge and cited the reasons for the proposed actions as:

* Article 15 dated 26 October 1973 for misconduct
* Article 15, dated 12 November 1974 with 3 charges of misconduct
* Possession of marihuana on 29 November 1974
* Records of counseling dated 4 November 1974 for going on sick call and not reporting to the dispensary by the first sergeant
* On 20 November 1974 for failure to perform his duties as a road guard properly by the first sergeant

	e.  The applicant consulted with counsel on 8 January 1975, and acknowledged receipt of the notification.  He was advised of the possible effects of a less than fully honorable discharge and the procedures and rights that were available to him.  He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  More importantly, he voluntarily consented to this discharge.

	f.  On 7January 1975, the applicant's immediate and intermediate commanders recommended approval of discharge.

	g.  The separation authority approved the applicant's discharge on 13 January 1975, under the provisions of AR 635-200, chapter 5-37 for failure to meet acceptable standards for continued military service and directed the applicant be issued a General Discharge Certificate.

	h.  The applicant was discharged from the Army on 3 February 1975.  His DD Form 214 (Report of Separation from Active Duty) confirms his service was characterized as "Under Honorable Conditions."  He served 1 year, 4 months, and 16 days of creditable active military service.  

4.  By regulation (AR 635-200), paragraph 5-37 pertained to the discharge of enlisted Soldiers for failure to demonstrate promotion potential.  Personnel whose performance of duty, acceptability for the service, and potential for continued effective service fall below the standard required for enlisted personnel in the United States Army.  

5.  By regulation, applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

6.  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 DOD guidance.  
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 of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He is remorseful; however, he did not provide character witness statements or evidence of post-service achievements for the Board to consider.  He was discharged for criminal offenses and was provided an Under Honorable Conditions (General) characterization of service.  The Board agreed that the applicant's discharge characterization is warranted 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.
	 
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, provides for the separation of enlisted personnel

	a.  Paragraph 3-7a (Honorable Discharge) provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. 

	b. Chapter 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 standard required for enlisted personnel in the United States Army.  The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the EDP.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade, and general aptitude.  

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. 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.

4.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170011000


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