ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  12 June 2019

	DOCKET NUMBER:  AR20170014194


APPLICANT REQUESTS:  in effect, an upgrade to his under honorable conditions discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application For The Review of Discharge From the Armed Forces of the United States)

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 the reason for the discharge is inaccurate.  He explains that he has never used or abused alcohol.  Also, since leaving the Army he has not received any benefits for his hearing loss while in stationed in Germany in the Aviation Battalion Command.  He adds he was not aware that he could file for compensation and believes he is entitled to receive benefits.

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

	a.  He enlisted in the Regular Army on 20 February 1980.

	b.  On 7 August 1981, he accepted nonjudicial punishment, Article 15, for being absent without leave from 7 August 1981 to 27 August 1981.  He was reduced to the grade of E2 and received 14 days extra duty.

	c.  On 14 October 1981, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations), Chapter 5-31, in effect at the time, under the Expeditious Discharge Program for poor attitude, lack of motivation, lack of self-discipline and failure to demonstrate promotion potential.  

	d.  The applicant acknowledged receipt of the commander’s intent to separate him; however, he did not submit a statement on his own behalf.

	e.  On 2 November 1981, the separation authority approved his discharge under provisions of AR 635-200, Chapter 5, in effect at that time.

	f.  The applicant was discharged on 26 January 1982.  His DD Form 214 shows he was discharged with an under other than honorable conditions characterization of service, under provisions of AR 635-200, Chapter 5 (Expeditious Discharge Program). He completed 1 year, 11 months and 7 days of active service.  It also shows he was awarded or authorized:

* Army Service Ribbon
* Overseas Service Ribbon
* Expert Marksmanship Qualification Badge with Rifle Bar

4.  By regulation, action will be taken to separate a soldier when it is demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under AR 635-200, Chapter 5.

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 a lack of both mitigating reasons for the AWOL and character evidence to show that applicant has learned and grown from the events leading to his discharge, as well as the applicant already receiving a general discharge, the Board concluded there was insufficient evidence to show that an error or injustice was present which warranted making a change to the applicant’s 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provides 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 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 1-13b (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 not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 5-31 of this regulation provides that under the Expeditious Discharge Program, soldiers who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army because of one or more of the conditions: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential may be separated when they have failed to respond to counseling.

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.

ABCMR Record of Proceedings (cont)	 AR20170014194


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