ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  9 July 2019 

	DOCKET NUMBER:  AR20170012635


APPLICANT REQUESTS:  an upgrade of his under honorable conditions discharge to honorable. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Report of Separation from Active Duty)
* United Services Automobile Agency (USAA) Letter

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 was 21 years old and had been going through a lot of things during that time and ended up leaving his unit for 23 days without permission.  He feels as though the circumstances under which he left were justified, because he could not handle it at the time.  He did not understand things or the consequences during that time what he would face; however, he went back to his unit and his pay had been taken from him for six months.  He has faced his punishment and is now a changed person. 

3.  The applicant provides a letter from the United States Automobile Association (USAA) stating after their review of his military service, they determined he was not eligible for a USAA membership.

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

	a.  He enlisted in the Regular Army on 13 November 1974. 

	
   
b.  He received nonjudicial punishment on/for:

* 15 November 1976, failing to go to his appointed place of duty on or about 17 October 1976, his punishment included forfeiture of pay and extra duty and restriction
* 16 December 1976, being absent without leave (AWOL) on or about 29 November 1976 from his unit, his punishment included reduction to private first class (PFC), forfeiture of $106 pay, extra duty and restriction 

	c.  On 26 January 1977, his immediate commander advised him that he was initiating action to discharge him from the United States Army under the provisions of paragraph 5-37 (Expeditious Discharge Program or EDP), Army Regulation (AR) 635-200 and furnish a discharge certificate of General.  The reasons for the commander’s proposed action are as follows:

* lack of willingness to perform honorable military service
* lack of potential (frequent absences and late arrivals to place of duty)
* failure to respond positively to repeated counseling’s by the chain of command

	d.  He acknowledged receipt of the proposed separation on 26 January 1977.  He voluntarily consented to this discharge and indicated that he understood:

* he acknowledged notification of his proposed discharge
* he waived his rights to submit a statement on his own behalf
* that he may prior to the date the discharge authority approves his discharge, withdraw his voluntary consent to this discharge
* he may expect to encounter prejudice in civilian life and acknowledged that he has been provided the opportunity to consult with an officer of the Judge Advocate General’s Corps
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws

	e.  On 26 January 1977, his immediate commander initiated action to discharge him from the United States Army under the provisions of paragraph 5-37, AR 635-200.  He recommended that he be issued a General Discharge Certificate.

	f.   Consistent with the chain of command recommendation, the separation authority approved the applicants discharge on 26 January 1977.  He issued a General Discharge Certificate.

	g.  He was discharged from active duty on 24 February 1977 with a general, under honorable conditions discharge.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of paragraph 5-37 (EDP) of Army Regulation 635-200 (Personnel Separations).  He completed 2 years, 3 months, and   11 days of active service.  It also shows he was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

5.  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.

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 review of the application and all evidence, the Board determined relief is not warranted.  The applicant’s contentions, letters of support and post-service achievement 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 was discharged for a criminal offense and was provided an Under Honorable Conditions (General) characterization of service.  He failed to accept responsibility and show remorse for the events leading to his separation.  The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

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 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) 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 in accordance with the following criteria.  Discharge under the provisions of this paragraph is limited to:
   
* personnel who fail to be advanced to the grade of E-2 after 4 months of active duty
* personnel who fail to demonstrate potential to justify advancement to the grade of E-3 after attaining the normal time-in-service and time-in-grade criterion for promotion to grade E-3, without waiver

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)	 AR20170012635


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