ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 August 2019 DOCKET NUMBER: AR20170013879 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Three DD Forms 214 (Report of Separation from Active Duty), for the periods ending 26 September 1974, 11 September 1975, and 19 October 1977 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20050002327 on 25 October 2005. 3. The applicant states his discharge was inequitable because it was based on one type of incident (10 days lost time) in his five years of service with no other adverse action. 4. A review of the applicant’s service record shows: a. He was inducted into the Army of the United States on 28 September 1972. b. He served in Germany from 20 March 1973 to 16 September 1974. c. He was transferred from active duty to the U.S. Army Reserve (USAR) on 26 September 1974. a. d. He entered active duty on 27 September 1974. He served in Panama from 4 October 1974 to 23 September 1975. e. He was discharged from the USAR to enlist in the Regular Army on 11 September 1975. f. He entered active duty on 12 September 1975. g. He accepted nonjudicial punishment on/for: * 4 March 1976, for disobeying a noncommissioned officer (NCO) and disrespecting a NCO * 11 August 1977, for being absent without leave from 28 July 1977 to 1 August 1977 and from 2 August 1977 to 4 August 1977 * 11 August 1977, for wrongfully possessing marijuana; his punishment included reduction to the grade of E-3 (suspended until 9 November 1977) h. On 16 August 1977, his immediate commander vacated the suspension of reduction to the grade of E-3 and reduced the applicant. i. His immediate commander notified the applicant that he was recommending discharge under the provisions of paragraph 13-5b, chapter 13 (Separation for Unfitness or Unsuitability), Army Regulation (AR) 635-200 (Enlisted Personnel – Personnel Separations) for unsuitability (apathy). j. On 24 August 1977, the applicant consulted counsel and was advised of the basis for contemplated action to accomplish his separation for chapter 13, AR 635-200. He: * waived consideration of his case before a board of officers * waived personal appearance before a board of officers * he elected not to submit statements in his own behalf * he understood that as a result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State Laws * he may expect to encounter substantial prejudice in civilian life * he understood that up until the date the discharge authority orders, directs, or approves his discharge, he may withdraw his waiver and request a board of officers consider his case k. Consistent with the chain of command recommendation, the separation authority approved the recommendation for discharge under the provisions of chapter 13, AR 635-200 and directed a General Discharge Certificate be furnished. a. l. The applicant was discharged from active duty on 19 October 1977 with a general, under honorable conditions characterization of service. His DD Form 214 shows he completed 2 years and 28 days with 2 years, 11 months, and 15 days of prior active service. It also shows he was awarded or authorized the Marksmanship Qualification Badge with Rifle Bar (M-16). 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board’s 15-year statute of limitations. 6. By regulation, action will be taken to separate an individual for unsuitability when it is clearly established that it is unlikely he will develop sufficiently to participate in further military training and/or become a satisfactory Soldier and he meets retention medical standards. An individual separated because of unsuitability will be furnished an Honorable or General Discharge Certificate as warranted by his military record. 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 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 of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. He was discharged after 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 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 to amend the decision of the ABCMR set forth in Docket Number AR20050002327 on 25 October 2005. 9/11/2019 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 (Enlisted Personnel – Personnel Separations), in effect at the time, provides the authority for separation of enlisted personnel upon expiration of term of service. It states: 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 13-2 (Policy) states action will be taken to separate an individual for unsuitability when it is clearly established that it is unlikely that he or she will develop sufficiently to participate in further military training and/or become a satisfactory Soldier and he meets retention medical standards. c. Paragraph 13-31 (Types of Separations) states an individual separated because of unsuitability will be furnished an Honorable or General Discharge Certificate as warranted by his military record. The type of discharge will be directed by the convening authority. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS//