ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  27 June 2019

	DOCKET NUMBER:  AR20170011319


APPLICANT REQUESTS:  an upgrade of his general discharge.

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:

     a.  He was absent without leave (AWOL), because his grandmother who raised him was sick and eventually died.  He had to take care of his younger brother and his father committed suicide when he was eleven years old.  He had a lot of issues going on that kept him from participating in the Reserves.  His grandmother helped him get through the tough times and he lost her in 1986 and was later diagnosed with diabetes.  He started taking pills and shots after seeing his mother and father die.  

     b.  During his period of service in the National Guard, it brought on some difficult memories.  He would appreciate the Board’s considering of his request, which would provide a change of life for me.  He wanted to finish his career with the Reserves, but could not.

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

	a.  On 21 April 1978, he enlisted into the North Carolina Army National Guard (NCARNG).

	b.  On 26 April 1982, the unit commander notified the applicant of his proposal to separate him under the provisions of chapter 7 of Army Regulation 135-178 (Separation of Enlisted Personnel) due to six days of being absent without leave (AWOL) within a one year period (13-14 December 1980, 21-22 March 1981 and 11-12 April 1981).  His chain of command recommended approval.

	c.  On 10 August 1982, the separation authority approved the applicant's discharge under the provisions of Army Regulation 135-178 (Separation of Enlisted Personnel), Chapter 7 with his service characterized as general under honorable conditions.

4.  On 9 August 1982, the State of North Carolina Military and Department of Crime Control and Public Safety, Raleigh, North Carolina, published Orders 151-5 discharging the applicant from his ARNG unit of assignment for being an unsatisfactory participant and assigning him to the USAR Control Group (Individual Ready Reserve) with an effective date of 15 August 1982, under honorable conditions.

5.  The National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) issued at the time shows he was discharged on 15 August 1982 under honorable conditions, by reason of unsatisfactory participation.

6.  Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard.  Chapter 7 of the regulation, in effect at the time, governed separation for acts or patterns of misconduct, including unsatisfactory participation.  The regulation provided that the separation authority could direct separation for unsatisfactory performance, or convene a board of officers to determine whether the service member should be separated for misconduct.

7.  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 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 did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the pattern of misconduct and the applicant already receiving a general discharge, the Board agreed that the applicant's discharge characterization was warranted.


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 135-91 (Service Obligations, Methods of Fulfillment,
Participation Requirements, and Enforcement Procedures) governs service obligations of members of the Reserve Components.  This regulation states that a member is an unsatisfactory participant when he or she accrues nine or more unexcused absences from scheduled drills during a one year period.

3.  Army Regulation 135-178 sets forth the requirements and procedures for administrative separation of enlisted members.

   a.  Chapter 7, of the version then in effect, provided for the separation for misconduct by reason unsatisfactory participation of statutorily obligated members.  The regulation stated that an enlisted member separated for reason of unsatisfactory participation will normally be furnished a characterization of service of under other than honorable conditions.

     b.  Paragraph 1-10b (1), of the version then in effect, provided that an honorable discharge was a separation with honor and entitles the recipient to benefits provided by law.  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.

     c.  Paragraph 1-10b (2), of the version then in effect, provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

4.  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.

//NOTHING FOLLOWS//


ABCMR Record of Proceedings (cont)	 AR20170011319


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