ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  20 June 2019

	DOCKET NUMBER:  AR20170015689


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

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)

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 at the time of enlistment he got involved with the wrong people that were doing drugs, drinking and partying.  He chose a field he could not bear and later on in life he found out he had a learning disability.  He is now 60 years old with health related issues and would like an upgrade, because his disability is worsening.

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

a.  He enlisted in the Regular Army on 6 May 1975.  

	b.  He accepted nonjudicial punishment:

* on 21 July 1975 for failing to obey a lawful order to secure personnel property
* on 15 October 1975 for failing to go at the time prescribed to his appointed place of duty
* on 28 October 1975 for failing to obey a lawful order to secure personnel property
* 18 November 1975, possession of a controlled substance, marihuana (7 dime and 4 nickel bags)
* 24 November 1975 for failing to go at the time prescribed to his appointed place of duty
	c.  On 26 November 1975, the applicant’s immediate commander initiated action to separate him under the provisions of paragraph 13-9, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel)) for unfitness, because of frequent incidents of a discreditable nature.  The commander stated: 

d.  On 26 November 1975, the applicant was advised by counsel of the basis for the contemplated action to separate him for unfitness under chapter 13, AR 635-200.  He waived consideration of his case by a board of officers and waived a personal appearance before a board of officers.  He elected not to submit statements on his own behalf.  He acknowledged:

* he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him
* as the result of an undesirable 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 may, up until the date the discharge authority directs or approves his discharge, withdraw his waiver and request that a board of officers hear his case

e.  Consistent with the chain of command recommendations, the separation authority approved the applicant’s discharge on 2 December 1975, under the provisions of AR 635-200, chapter 13.  He would be furnished an Undesirable Discharge Certificate.

f.  He was discharged from active duty on 4 December 1975 with an under conditions other than honorable characterization of service.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 6 month, and 29 days of active duty.

4.  The applicant applied to the Army Discharge Review Board and it was determined that he was properly discharged.  His request was denied on 17 January 1978.

5.  By regulation, action will be taken to separate an individual for unfitness when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort is unlikely to succeed.  An individual separated by reason of unfitness will be furnished an Undesirable Discharge Certificate, except that an Honorable or General Discharge Certificate may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstances in his case.

6.  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 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 short term of service completed prior to a pattern of misconduct, 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.



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, sets forth the basic authority for the separation of enlisted personnel.

   a.  Paragraph 1-8d (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 1-8e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 13 of that regulation provides action will be taken to separate an individual for unfitness when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort is unlikely to succeed.  An individual separated by reason of unfitness will be furnished an Undesirable Discharge Certificate, except that an Honorable or General Discharge Certificate may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstances in his case.

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//

ABCMR Record of Proceedings (cont)	 AR20170015689


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