ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  18 June 2019

	DOCKET NUMBER:  AR20170011873


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)

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, in effect, he was a proud infantryman and feels that he was in no way unsuitable for the military.  He did his job when he was told to do it, without question.  He began having issues with the new first sergeant about 6 to 9 months before he was to leave the military and he was also attacked by two people in his unit. He believes the first sergeant wanted him to quit, but he could not prove it.  He feels that he was targeted and as a result he was chaptered out of the military.  He was treated unjustly and is just asking for his discharge to be upgraded to honorable. 

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

	a.  He enlisted in the Regular Army on 28 March 1980.

	b.  He accepted non judicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on/for the following:

* 8 September and 2 October1980, for failing to be at his appointed place of duty
* 24 December 1980, for theft 
* 18 January 1981, for breaking restriction and for failing to be at his appointed place of duty – reduced to private/E-1

	c.  On 10 March 1981, the applicant's immediate commander notified him of his intent to initiate separation proceedings against him under the provisions of chapter 13 of Army Regulations (AR) 635-200 (Personnel Separations-Enlisted Separations) for unsuitability.  The commander advised him of his rights to counsel, and provided him an opportunity to submit statements on his behalf.

	d.  The applicant signed the acknowledgement of notification, waived his rights to counsel and waived the consideration of his case by an administrative separation board.  He did not provide a statement on his behalf.

	e.  On 10 March 1981, the applicant was recommended for separation by his commander and his chain of command concurred.  The separation authority approved his separation on 24 March 1981, and directed the applicant to receive a general, under honorable conditions character of service discharge and be released into the Individual Ready Reserve to complete his required statutory military service obligation.

	f.  The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged under AR 635-200, chapter 13, under the provisions of AR 635-200, chapter 13, paragraph 13-4c, unsuitability, and issued a general, under honorable conditions discharge.  His DD Form 214 also shows that he completed 1 year and 5 days of active service with no lost time.  He was awarded or authorized the Expert Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  By regulation, AR 635-200, states that action will be taken to separate an individual for unsuitability when it is clearly established that it is unlikely that he will develop sufficiently to participate in further military training.

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 review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  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 short term of service prior to a pattern of misconduct, including an offense of stealing from a fellow Soldier, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.


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 Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-9d (Honorable) provides that an honorable discharge is a separation with honor.  Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude.

	b.  Paragraph 1-9e (General) a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.  When a member's service is characterized as general, except when discharged by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific "basis for such separation will be included in the individual's military personnel record.

	c.  Paragraph 13-1, of this chapter, in effect at the time, established policy and provides procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. 

	d.  Paragraph 13-2b says that action will be taken to separate an individual for unsuitability when it is clearly established that it is unlikely that he will develop sufficiently to participate in further military training and/or become a satisfactory Soldier and he meets retention medical standards (Army Regulation 40-501) (paragraph 13-11a).
	
	e.  Paragraph 13-4c states that Commanders exercising special court-martial
jurisdiction are authorized to convene boards of officers for unsuitability and to order
separation except that they may not order discharge of personnel referred to in a, above.

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)	 AR20170011873


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