ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 June 2019 DOCKET NUMBER: AR20170014030 APPLICANT REQUESTS: an upgrade of his under honorable (general) conditions 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 states six months after discharge he was told his discharge would changed to honorable. He never requested the upgrade to his discharge, but knows it has hindered his ability to apply for certain accounts. He never requested for his discharge to change from general to honorable. 3. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 16 August 1974. b. On 24 June 1975, he accepted non-judicial punishment for failing to go at the time prescribed to his appointed place of duty on or about 16 June 1975 and 17 June 1975. He was reduced to the grade of private/E-1. c. On 1 August 1975, immediate commander notified the applicant of his intent to initiate separation action under the provisions of Army Regulation (AR) 635-200, (Enlisted Personnel-Personnel Separations) chapter 5-37 for two article 15s for numerous offenses, his poor motivation to meet the standard of the U. S. Army, his open hostility toward the Army, his lack of cooperation with your peers/superiors and his inability to accept instructions or directions. d. On 4 August 1975, he acknowledged receipt and was advised by his consulting counsel of the basis for the contemplated action to separate him for commission of a serious offense under the provisions of AR 635-200, chapter 5-37, its effect, of the rights available to him, and the effect of any action taken by him in waiving his rights. He acknowledged: * he had been afforded the opportunity to consult counsel * that he was being consider for service characterization under other than honorable conditions * understood that he could expect to encounter substantial prejudice in civilian life if a discharge under other than honorable conditions was issued to him * understood that as the result of issuance of a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life e.. Following this acknowledgement, the commander initiated separation action against the applicant. The chain of command recommended approval. f. On 6 August 1975, the separation authority approved separation under AR 635- 200, chapter 5-37 with the issuance of an under honorable (general) conditions discharge. g. On 15 August 1975, the applicant was discharged from active duty. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged for Expeditious Discharge Program (EDP) under chapter 5-37 of AR 635-200. It shows he completed 1 year of active service. It also shows he was awarded or authorized and National Defense Service Medal Expert Marksman Qualification Badge with the Rifle Bar (M-16) 4. By regulation (AR 635-200), 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 US Army may be discharged in accordance with the following criteria. Discharge under the provisions of this paragraph is limited to: (1) Personnel who fail to be advanced to the grade of E-2 after 4 months of AD. (2) 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, established in chapter 7, AR 600-200. 5. In reaching its determination, the Board can consider the applicant’s petition and her 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 there is insufficient evidence to grant relief. 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. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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. By regulation, AR 635-200 (Personnel Separations – Enlisted Personnel) 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 1-9e (General discharge) (1) states A general discharge is a separation from the Army under honorable condition of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member's service is characterized as general, except when discharged by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific "basis for such separation will be included in the individual’s military record. c. Paragraph 1-9e (General discharge) (2) states a general discharge may be issued if an individual has been convicted of an offense by general court-martial or has been convicted by more than one special court-martial In the current enlistment period or obligated service or any extension thereof. The decision is discretionary; if there is evidence that the individual's military behavior has been proper over a reasonable period of time subsequent to the conviction(s), he may be considered for an honorable discharge. d. Paragraph 1-9e (General discharge) (3) states a member’s service may be characterized as general by the commanding officer authorized to take such action or higher authority when the member is eligible for or is subject to separation and it has been determined, under the prescribed standards, that separation is warranted. e. 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 US Army may be discharged in accordance with the following criteria. 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. //NOTHING FOLLOWS//