ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  6 June 2019

	DOCKET NUMBER:  20170011125


APPLICANT REQUESTS: an upgrade of his under other than honorable discharge conditions to honorable.

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

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 that he believes his character of service on his DD Form 214 (Certificate of Release of Discharge from Active Duty) is wrong.

3.  A review of his service records show:

	a.  He enlisted in the Regular Army on 28 August 1979.

	b.  He served in Germany from 10 June 1980 to 22 February 1982.

	c.  He accepted nonjudicial punishment on/for:

* 9 September 1980, being disrespectful language to a superior noncommissioned officer (NCO)
* 13 March 1981, dereliction of duty by drinking on guard duty
* 5 June 1981, assaulting another Soldier;
* 2 September 1981, assaulting another Soldier
* 29 April 1982, failing to be at appointed place of duty; his punishment included reduction to private/E-1

	d.  On 9 January 1982, he was convicted by a summary court-martial of one specification of failing to be at his appointed place of duty, one specification to of assaulting a Soldier, and one specification of being drunk and disorderly in quarters.  The court sentenced him to reduction to private/E-2, forfeiture of pay, and 45 days of hard labor without confinement.  The convening authority approved his sentence. 

	e.  On 29 April 1982, the applicant’s immediate commander notified him he was initiating separation action against him in accordance with Army Regulation 635-200 (Personnel Separations-Enlisted Separations), paragraph 5-31 (expeditious discharge program) with an [under honorable conditions discharge] for chronic history of Uniform Code of Military Justice actions, apathy in duty performance inability to demonstrate minimum level of proficiency, and lack of willingness to improve performance.  The applicant acknowledged receipt of the notification and affirmed that:

* statements on his behalf are not submitted
* he may encounter substantial prejudice in civilian life with an [under honorable conditions discharge]

	f.  On 29 April 1982, his immediate commander recommended separation under the provisions of Army Regulation 635-200, paragraph 5-31 (expeditious discharge program) with [General Discharge Certificate].  The adjutant general affirmed that the applicant would not be retained in the individual ready reserve.

	g.  On 29 April 1982, the separation/convening authority approved separation under the provision of AR 635-200, paragraph 5-31 (expeditious discharge program) with a general discharge.  

	h.  The applicant was discharged from active duty on 12 May 1982 under the provisions of Army Regulation 635-200, paragraph 5-31 (expeditious discharge program) with a general discharge.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 8 months, and 15 days of active duty service.  He was awarded or authorized the Army Service Ribbon and the Overseas service Ribbon.

4.  By regulation, AR 635-200, states that this type of discharge and character of service are of great significance to the Soldier and must accurately reflect the nature of service performed.  Eligibility for Veteran Benefits provided by law, eligibility for reentry into service, and acceptability for employment in the civilian community may be affected by these determinations.  .

	 a.  Chapter 5, paragraph 31h of this regulation states commanders specified in paragraph 1-31, lieutenant colonels who are commanders of battalion and battalion size units, and colonels who are commanders of battalion size units are authorized to order separation under this program.  

	b.  Release from active duty and transfer to the individual readiness reserve to complete their military service obligation those members deemed to have the potential for service under conditions of full mobilization.

	c.  Discharge those members deemed to have no potential for useful service under conditions of full mobilization.

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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the short term of service completed prior to a pattern of misconduct, some of which included violent behaviors towards others, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from those 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

XX	XX	XX	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 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member'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.  Paragraph 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge

	c.  AR 635-200 Chapter 5, paragraph 31h of that regulation states commanders specified in paragraph 1-31, lieutenant colonels who are commanders of battalion and battalion size units, and colonels who are commanders of battalion size units are authorized to order separation under this program.  

* Release from active duty and transfer to the individual readiness reserve to complete their military service obligation those members deemed to have the potential for service under conditions of full mobilization
* Discharge those members deemed to have no potential for useful service under conditions of full mobilization

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)	20170011125
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