ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  2 July 2019

	DOCKET NUMBER:  AR20170012051


APPLICANT REQUESTS: his DD Form 214 (Certificate of Release or Discharge from Active Duty), (item 24) character of service is changed from under other than honorable conditions to general, under honorable conditions.

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 that a copy of his DD Form 214 (item 24) character of service is changed from under honorable conditions to general, under honorable conditions.  He was told at discharge that he would receive a general discharge.

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

	a.  He enlisted in the Regular Army on 26 December 1979.

	b.  On 6 May 1981, he accepted nonjudicial punishment (NJP) for failure to obey his superior noncommissioned officer.  His punishment included reduction to the grade of private/E-2.

	d.  On 28 May 1980, he accepted NJP for climbing on and damaging a 1973 Peugeot Convertible.  

	e.  On 24 July 1981, the applicants commander, using AE Form 113-10 (Notification of Pending (EDP) Expeditious Discharge Program Discharge and Acknowledgment) notified him of his intent to initiate separation under the provisions of paragraph 5-31, Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) for failure to maintain acceptable standards for retention with the issuance of a General Discharge Certificate.  

	f.  On 24 July 1981, the applicant acknowledge his immediate commander’s notification of his intent to initiate separation under the provisions of paragraph 5-31.  He voluntarily consented to this discharge, and acknowledged:

* his right to decline discharge and if he declines the discharge he may be subjected to disciplinary or administrative separation under other provisions of law or regulations
* If he accepts this discharge, action will be taken to recoup any unearned portions of the enlistment or reenlistment bonuses which you have received
* he has the right to submit a statement on his behalf, or he may waive the right
* he will not be permitted to apply for enlistment in the United States Army within 2 years from his date of discharge
* if issued an undesirable discharge, he could expect to encounter substantial prejudice in civilian life 

	g.  On 27 July 1981, his immediate commander initiated a recommendation to separate him under the provisions of chapter 5-31 of AR 635-200, with the issuance of a General Discharge Certificate for the inability to adapt to military life.

	h.  On 28 July 1981,  the separation authority approved the separation under the provisions of paragraph 5-31, AR 635-200 for EDP with a general, under honorable conditions characterization of service and the issuance of a General Discharge Certificate.

	i.  Orders 177-5, dated 29 July 1981, ordered his discharge from active duty with an effective date of 10 August 1981.

	j.  He was discharged from active duty on 17 August 1981.  His DD Form 214 shows that he was discharged (item 25) under the provisions of paragraph 5-31, AR 635-200 for EDP (item 28) for failure to maintain acceptable standards for retention with a (item 24) character of service of under honorable conditions.  He completed 1 year, 7 months, and 22 days of active service, and he was assigned Separation Program Designator JGH.  He was awarded or authorized Expert-Qualification Marksmanship Badge with Rifle Bar (M16) and Expert-Qualification Hand Grenade Badge with Hand Grenade Bar.

4.  By regulation, Army Regulation (AR) 635-5 (Separation Documents) 

* item 24 (character of service) authorized entries are honorable, under honorable conditions (general), under other than honorable conditions, bad conduct, dishonorable, to be determined 
* item 25 (separation authority) enter the regulatory or statutory authority cited in directives authorizing separation 
* item 28 (narrative reason for separation) enter the reason for separation (shown in AR 635-5-1) based on the regulatory or statutory authority  

5.  By regulation (AR 635-5-1), Soldiers separating under the provisions of chapter 11 of AR 635-200 are assigned Separation Code JGH.  The Narrative Reason for Separation associated with this chapter and separation Code is "Army, Air Force Expeditious Discharge."  

6.  By regulation, AR 635-200, paragraph 5-31 states members who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army because of existence of one or more of the following conditions may be separated from when they have failed to respond to counseling.  All members separated under this paragraph will be released from active duty and transferred to the Individual Ready Reserve to complete their service obligation, except those whom the separation authority determines, for some specific reason, have no potential for useful service under conditions of full mobilization.  Before making such determination, the separation authority will give due consideration to the gravity of a situation requiring a full mobilization and the positive motivation such condition may will have on these members, also, the probably maturing effect of an additional two more years in age.  

* Poor attitude
* Lack of motivation
* Lack of self-discipline
* Inability to adapt socially or emotionally
* Failure to demonstrate promotion or emotionally

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 reviewing the application and all supporting documents, the Board found the relief was warranted.  The applicant’s contentions were carefully considered.  His DD Form 214 show he received an under honorable conditions character of service.  Regulatory guidance provides an under honorable conditions character of service is a general characterization.  However, regulatory guidance shows the entry as under honorable conditions (General).  The Board determined, to prevent any confusion with his separation document, to amend his DD Form 214 by adding the entry (General).



BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending item 24 of his DD Form 214 for the period ending 17 August 1981 by showing is character of service as Under Honorable Conditions (General).
	 
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 Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-9d (Honorable Discharge) states 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 Discharge) states 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 discharge by reason of misconduct, unfitness, and unsuitability.

	c.  Paragraph 5-31 states members who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army because of existence of one or more of the following conditions may be separated from when they have failed to respond to counseling.  All members separated under this paragraph will be released from active duty and transferred to the Individual Ready Reserve to complete their service obligation, except those whom the separation authority determines, for some specific reason, have no potential for useful service under conditions of full mobilization.  Before making such determination, the separation authority will give due consideration to the gravity of a situation requiring a full mobilization and the positive motivation such condition may will have on these members, also, the probably maturing effect of an additional two more years in age.  

* Poor attitude
* Lack of motivation
* Lack of self-discipline
* Inability to adapt socially or emotionally
* Failure to demonstrate promotion or emotionally

3.  By regulation, AR 635-5 (Separation Documents) 

* item 24 (character of service) authorized entries are honorable, under honorable conditions (general), under other than honorable conditions, bad conduct, dishonorable, to be determined 
* item 25 (separation authority) enter the regulatory or statutory authority cited in directives authorizing separation 
* Item 28 (narrative reason for separation) enter the reason for separation (shown in AR 635-5-1) based on the regulatory or statutory authority  

5.  By regulation (AR 635-5-1), Soldiers separating under the provisions of chapter 11 of AR 635-200 are assigned Separation Code JGH.  The Narrative Reason for Separation associated with this chapter and separation Coder is "Expeditious Discharge." 

6.  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)	 AR20170012051
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