ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  12 June 2019

	DOCKET NUMBER:  AR20170014196


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 293 (Application for 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 he was 18 and very young at the time.  He had a wife and little girl who was just born and his wife could not deal with it.  It was hard for him to deal with the separation and his wife wanted to be near him.  He wishes he could do it over again.  

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

a.  He enlisted in the Regular Army on 21 October 1975.

b.  On 1 August 1976, his immediate commander advised him that he was initiating
action to discharge him from the United States Army under the provisions of Department of the Army (DA) message 111445z Nov 1974 and furnish a discharge certificate of General.  The reasons for the commander’s proposed action are as follows:

* substandard duty performance
* lackadaisical attitude
* immaturity
* inability to adapt socially
* inability to adapt emotionally

c.  Consistent with the chain of command recommendation, the separation authority 
approved the applicants discharge on 19 August 1976.  He issued a General Discharge Certificate. 

d.  He was discharged from active duty on 25 August 1976 with a General Under 
Honorable Conditions.  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 10 months and 5 days of active service.  He was awarded or authorized the Marksmanship Qualification Badge.

4.  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.

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 short term of service prior to the misconduct, as well as the applicant already receiving a general discharge, the Board found 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 1-9d (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.

ABCMR Record of Proceedings (cont)	 AR20170014196


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