ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:
	BOARD DATE:  7 June 2019

	DOCKET NUMBER:  AR20170012551


APPLICANT REQUESTS:  an upgrade to his under honorable conditions (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 enlisted in the Regular Army on 27 March 1974.

3.  His service record is void of the complete facts and circumstances surrounding any non-judicial punishment (NJP).

4.  The applicant's immediate commander notified the applicant on 17 June 1975 that he was initiating actions to separate him from service under the provisions of Army Regulation 635-200, paragraph 5-37.  His commander advised him of the rights available to him, and of the effect of any action taken by him to waive his rights.  He further advised him that he would recommend that he receive a general discharge.

5.  The applicant acknowledged receipt of the proposed separation memorandum and waived representation by counsel and his right to submit a statement in his own behalf.  He acknowledged that he may encounter substantial prejudice in civilian life if he received a general discharge, under honorable conditions.  He voluntarily consented to the separation.  

6.  The applicant's commander formally recommended his separation from service on 18 June 1975, under the provisions of Army Regulation 635-200, paragraph 5-37, based on his prior record of misconduct.

7.  Consistent with the chain of commands recommendations, the separation authority approved the applicant's discharge on 27 June 1975 and directed that his service be characterized as general, under honorable conditions.

8.  The applicant was discharged on 7 July 1975.  His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 5-37, and his service was characterized as under honorable conditions (general).  Item 9c (Authority and Reason), contains the entry "AR 635-200 Para 5-37 SPD KMN."

9.  In reaching its determination, the Board should consider the applicants statement 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 that relief was not warranted.  Based upon the pattern of misconduct and a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to the discharge, the Board concluded that the characterization of service received at the time of discharge 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 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a states an honorable discharge is 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.

	b.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 5 provided for the EDP.  The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential could be discharged under the EDP.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  Soldiers had to consent to separation under this program in order for commanders to separate them under the provisions of the EDP.  Otherwise, a commander was required to separate Soldiers under other provisions of the regulation, which in most cases resulted in an under other than honorable conditions discharge.  Individuals discharged under this provision of the regulation were issued either a general or honorable discharge.

3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.
     
	a.  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 on the basis of equity, injustice, or clemency grounds, Boards 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.  

	b.  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)	 AR20170012551


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