ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 October 2019 DOCKET NUMBER: AR20170012049 APPLICANT REQUESTS: upgrade of his general discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge of from the Armed Forces of the United States) * DD Form 214 (Report of Separation from Active Duty) 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 (ABCMR) 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 was told at the time of his separation that he could get an upgrade. He has medical issues with his teeth and eyes and requires dentures and glasses. He needs occasional help with food. The county veteran’s assistance office could not help him without an upgraded discharge. 3. Review of the applicant's service record shows: a. He enlisted in the Regular Army on 29 October 1974. He served in Germany from 25 March 1975 to 11 November 1976. b. He accepted non-judicial punishment under the provisions of Article 15 on/for the following: * 15 July 1975, disobeyed a lawful order on 21 and 25 June 1975, forfeiture of $50 per month for 1 month and 7 days extra duty * 18 September 1975, disobeyed a lawful order and absent himself from his place of duty on 11 September 1975, forfeiture of $75 per month for 1 month and 14 days restriction and extra duty (7 days suspended for 60 days) * 18 February 1976, assault a Soldier by threatening him with a knife on 11 February 1976, reduction to PVT/E1 (suspended for 60 days), 14 days restriction and forfeiture of $90 per month for 1 month (suspended for 60 days) c. On 29 July 1976, his immediate commander recommended him for a bar to reenlistment and his intermediate commander approved the bar to reenlistment on [unknown date]. d. On 21 September 1976, the applicant's immediate commander advised him of his intent to initiate separation action against him under the provisions of paragraph 5-37 (Expeditious Discharge Program (EPD)), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), for numerous acts of a discreditable nature, which have resulted in three Article 15s. He advised him of the following: * have the right to decline the discharge, if declined and subsequent conduct indicates that such action is warranted, he may be subject to disciplinary or administrative separation procedures under other provisions of laws or regulations * submit statements on his own behalf e. On 21 September 1976, the applicant acknowledged notification of the proposed separation action, declined voluntary consent to be discharged, and submitted a statement on his own behalf. His statement is as follows: “I do not wish to receive this EPD (Expeditious Discharge) as I feel even though my past years in this unit reflects that I should accept it. But I feel perfectly capable of completing my tour of duty with this unit. My current tour of duty in Europe end’s in 11 months and I feel that I should be allowed to spend the rest of my time without being continually asked or told that I am going to be separated from the service before my time is up. Furthermore, when I first started this action, it all stemmed from family matter's while I was home on leave in July of this year. Since then I have received a letter stating that I am no longer needed at home anymore.” f. On 21 September 1976, the applicant's immediate commander informed the intermediate commander that the applicant could not be discharged under the provisions of paragraph 5-37, AR 635-200 because it is a voluntary program. g. On 15 October 1976, the applicant's immediate commander advised him of his intent to initiate separation action against him under the provisions of paragraph 13-12b (3) of AR 635-200, for unsuitability. He advised him of the following rights to: * present his case before a board of officers * submit statements in your behalf * be represented by counsel * request a psychiatric examination in connection with this action * waive the above rights in writing * withdraw any waiver of all or part of his rights prior to the date the discharge authority directs or approves his discharge and request that a board of officers hear his case * tender resignation in lieu of board action pursuant to chapter 9, AR 635-200, if he was on an unspecified enlistment commitment h. On [unknown date], a mental evaluation was conducted. The examiner stated the applicant had the mental capacity to understand and participate in board proceedings and was mentally responsible. i. On 15 October 1976, his immediate commander initiated separation action against him under the provisions of paragraph 13-5b (3), AR 635-200, for unsuitability. j. On 19 October 1976, the applicant acknowledged notification of the proposed separation action. k. On 22 October 1976 (this date was crossed out and changed to 5 November), The commander advised the applicant of his right to: * consideration of his case by a board of officers * personal appearance before a board of officers * statements in his own behalf * representation by his appointed counsel * understands that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him * may only receive a discharge under honorable conditions since he was being recommended for separation for unsuitability or unfitness pursuant to paragraph 13-5b (3) l. On 22 October 1976, the intermediate commander recommended the applicant be eliminated from the service and requested the requirement for a rehabilitative transfer be waived. m. On 8 November 1976, the separation authority approved the request for elimination under the provisions of paragraph 13-5b (3), AR 635-200, for unsuitability. He waived the requirement for a rehabilitative transfer in accordance with paragraph 13- 9 (c) with issuance of a General Discharge Certificate. n. On 15 November 1976, the applicant was discharged from active duty under the provisions of paragraph 13-5b (3), AR 635-200. He completed 2 years and 17 days of net active service. His DD Form 214 shows he was awarded or authorized the Marksman Marksmanship Qualification Badge (M-16). 4. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 5. By regulation AR 635-200 provides that commanders will separate a member under chapter 13 when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. A general or honorable discharge was considered appropriate. 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. 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 relief was not warranted. The Board found that the service member displayed a pattern of misconduct and insubordination. In addition, the applicant did not provide any evidence to show his past behavior have since been corrected. For that reason, the Board concluded that the characterization of service received at the time of separation was appropriate. 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 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, in effect at the time, sets forth the basic authority for the separation of enlisted personnel: a. Paragraph 1-9d, states 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 1-9e, states 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. c. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. A general or honorable discharge was considered appropriate. 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. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170012049 5 1