ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  16 July 2019

	DOCKET NUMBER:  AR20170013722


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge From the Armed Forces of the United States)
* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Report of Separation From Active Duty), effective date 5 June 1977
* DD Form 214 (Certificate of Release or Discharge From Active Duty), effective date 24 April 1980

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 is ready to purchase a home and have applied at USAA for insurance for both his home and auto.  He was denied until his discharge status is upgraded to honorable.  His discharge status should have changed after 36 months, but did not.  He would like his discharge changed from a general, under honorable conditions discharge to an honorable conditions discharge.  He provides two DD Form 214 from this time in service; the first, effective 5 June 1977 was issued for the completion of advanced individual training; and the second, effective date of 24 April 1980 was issued as a result of his Expeditious Discharge Program separation.  

3.  The applicant’s service record shows:

	a.  The applicant’s initial enlistment contract is not available for review.  However, his DD Form 214, effective date 16 April 1978, shows he enlisted in the Army National Guard (ARNG) on 5 June 1977.  
	b.  He entered active duty for training (ADT) on 23 October 1977 and completed training for award of military occupational specialty 91B (Medical Specialist).  

	c.  On 15 December 1977, he accepted nonjudicial punishment (NJP) for one specification of theft.  His punishment was forfeiture of $150 pay per month for one month.  

	d.  He was honorably released from ADT to the control of his ARNG unit on 16 April 1978.  He completed 5 months and 24 days of active service and he was awarded/authorized the Marksman Marksmanship Qualification Badge with Rifle Bar.  

	e.  He enlisted on 20 March 1979 in the Regular Army.  He was assigned to Fort Benning, GA.  While there, he accepted NJP on/for:

* 11 October 1979 one specification of failing to go to his appointed place of duty; he was reduced to private (PVT)/E-2, suspended for two months and extra duty for 14 days (suspension was vacated on 22 November 1979)
* 26 March 1980 for one specification of failing to go to his appointed place of duty; he was reduced to PVT/E-1

	f.  On 7 April 1980, a DA Form 3822-R (Report of mental Status Evaluation) deemed him mentally responsible, able to distinguish right from wrong and to adhere to the right, and has the mental capacity to understand and participate in board proceedings.  

	g.  On 17 April 1980, the commander notified the applicant that he was initiating action under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program) to release him from active duty.  The specific reasons are cited as the applicant’s lack of self-discipline, lack of motivation, and failure to demonstrate promotion potential.

	h.  On 18 April 1980, he acknowledged notification of his proposed separation under the provisions of AR 635-200, paragraph 5-31.  After consulting with legal counsel he voluntarily consented to the separation.  He acknowledged:

* if his service is characterized as under honorable conditions, he may expect to encounter substantial prejudice in civilian life
* there is no automatic upgrading nor review by any government agency of a characterization of service which is under honorable conditions
* prior to the date the separation authority approves his separation, withdraw his voluntary consent to the separation
* if he declines to accept this separation voluntarily, he may at a future time, if his conduct so warrants, be subject to separation under other provisions of law or regulation

	i.  On 21 April 1980, the separation authority approved the discharge recommendation for immediate separation.  He would be discharged under the provisions of AR 635-200, paragraph 5-31, and issued a General Discharge Certificate.

	j.  On 24 April 1980, he was discharged from active duty.   His DD Form 214, shows he was discharged under the provisions of AR 635-200, paragraph 5-31h(2), and issued a general, under honorable conditions discharge.  He completed 2 years, 10 months, and 20 days of active service.  It also shows that he was awarded or was authorized the Expert Marksmanship Qualification Badge with Rifle Bar.  

	k.  On 29 April 1983, Personnel Services Directorate forwarded a letter to the application in reference to his application for the correction of his military records to change his reenlistment code.  He was informed he was ineligible to reenter the Regular Army unless waivers of last discharge and bar to reenlistment are granted by the Department of the Army.  He was also required to get a waiver for the Army’s grade and service criterion since he was discharged in the grade E-1 with more than six months active service.  

4.  By regulation, 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 condition may be separate.

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

5.  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 that relief was not warranted.  Based upon the pattern of misconduct which led to the applicant’s separation, as well as the applicant’ already receiving a General Discharge, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the characterization of service.


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 1-13a (Honorable Discharge) states 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 or obligated service with due consideration for the member’s age, length of service, grade, and general aptitude.

	b.  Paragraph 1-13b (General Discharge) states a general discharge is a separation from the Army under honorable conditions.  It is issued to a member whose military record is satisfactory by not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 5-31 (Expeditious Discharge Program) 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 condition may be separate.

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

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 the 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, 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 upgrade service characterization.  


ABCMR Record of Proceedings (cont)	 AR20170013722


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