ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 September 2019 DOCKET NUMBER: AR20170012246 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: he provides a 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 he requested to be internally retrained as a heavy equipment repairman and his request was declined. He believes he was not provided any benefit to the Army in his current military occupation specialty. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 3 December 1975. b. He accepted nonjudicial punishment on/for: * 27 July 1976, for leaving his appointed place of duty without authority * 4 March 1977, for failing to go at the time prescribed to your appointed place of duty c. On 16 February 1977, his immediate commander notified the application of his intent to discharge him under the provisions of paragraph 5-37 (Expeditious Discharge Program), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He recommended a General Discharge Certificate. The reasons for his proposed action was: * lack of motivation * failure to adapt socially and emotionally * inability to adapt * inefficiency in duty performance * belligerent attitude toward your superiors d. On 17 February 1977, the applicant acknowledged notification of his proposed separation. He voluntarily consented to discharge. He elected to submit a statement in his own behalf (Not included in the record). He understood: * if he was issued a general discharge under honorable conditions, he may expect to encounter substantial prejudice in civilian life * he acknowledged he was provided the opportunity to consult with an officer of the Judge Advocate General’s Corps * he may withdraw his voluntary consent to discharge prior to the date the discharge authority approved his discharge * if he declined to accept the discharge voluntarily, he may at a future time, if his conduct so warranted, be subject to separation under other provisions of law or regulation * if he was a bonus recipient, he would be indebted to the Government for monies received e. On 17 February 1977, his immediate commander initiated separation proceedings, under the provisions of AR 635-200, paragraph 5-37. f. On 21 March 1977, consistent with the chain of command recommendation, the separation authority approved the discharge request, under the provisions of AR 635- 200, paragraph 5-37 and directed he be issued a general discharge. g. The applicant was discharged on 1 April 1977, under the provisions of AR 635- 200, paragraph 5-37, with an under honorable conditions (General) discharge. His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 3 months and 29 days of net active service. It also shows he was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16). 4. By regulation, personnel whose performance of duty, acceptability for the service, and potential for continued effective service fall below the standards required for enlisted personnel in the Army may be discharged. Normally, an honorable discharge will be awarded unless the Soldier’s conduct clearly substantiates a general discharge. 5. The Board should 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 for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board found no evidence of in-service mitigating factors and the applicant did not provide character witness statements or evidence of post-service achievements for the Board to consider in support of clemency. He was discharged for a pattern of misconduct, and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted; the Board found no error or injustice. 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. 11/12/2019 X CHAIRPERSON Signed by: 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 5-37 (Discharge for Failure to Demonstrate Promotion Potential) states personnel whose performance of duty, acceptability for the service, and potential for continued effective service fall below the standards required for enlisted personnel in the Army may be discharged. Normally, an honorable discharge will be awarded unless the Soldier’s conduct clearly substantiates a general discharge. 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 (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 acknowledgment that a relative error or injustice was committed, or 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 benefits or similar benefits that might have been received if reason for the discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS//