ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 July 2019 DOCKET NUMBER: AR20170015693 APPLICANT REQUESTS: in effect, 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 the Review of Discharge from the Armed Forces of the United States) * 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 that he would like to upgrade his general, under honorable conditions discharge to an honorable. The reason for this request is so that he can purchase home owner insurance through united service automobile association (USAA). USAA told him that he will need an honorable discharge although he has a general discharge under honorable conditions. USAA policy requires its members to have an honorable discharge to purchase home owner insurance. The savings that USSA is offering on their home owner insurance will be helpful during these tough economic times. He is humbly requesting an upgrade of his general, under honorable conditions to honorable. 3. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army on 1 February 1974. b. He accepted nonjudicial punishment (NJP) on/for: * 25 February 1975 for being drunk and disorderly and interfering with duties of Military Police on or about 22 February 1975. * 7 May 1975 for failure to obey a lawful order given to him on 30 April 1975, to report to guard duty; His punishment included reduction to private/E-2 * 27 August 1975 for failure to be at his appointed place of duty on 26 August 1975 * 19 September 1975 for violation of a general lawful regulation, to wit a no visitor policy issued by the commander; His punishment included reduction to private/E-1 d. On 30 September 1975, his immediate commander recommended punishment under NJP for having wrongful possession of a controlled item, ration card, did fail to obey that regulation on 26 September 1975. The memorandum also lists previous NJPs. e. On 1 October 1975, a memorandum for record states that the unit conducted a health and welfare inspection of the billets, common areas and personal items. Upon inspection of the applicant’s wall locker a ration card, issued to X____ was found. The ration card had been reported lost 2 months prior and no replacement card had been issued to date. On 26 September 1975, the applicant was read his rights and interviewed by the battery commander. The applicant stated that he received the ration card from specialist X____, a former member of his unit prior to his ETS. He secured it in his locker and forgot about it and at no time did he attempt to use the card which was evident by no markings appearing on the card. The applicant further stated that he knew he was not authorized to possess a ration card issued to another individual, but had forgotten to turn it in. f. On 7 October 1975 he accepted NJP for wrongful possession of a controlled item on or about 26 September 1975. A self-authored statement by the applicant states that he feels he was not given legal rights afforded by UCMJ. He asked private first class Al_n to be present, and was told that he was on Reforger. He feels the Article 15 was not legally fair or sufficient and further ask that it be thrown back, and dropped from his records. g. On 14 October 1975, his intermediate commander submitted a rebuttal to the applicant’s NJP that was accepted on 7 October 1975. The memorandum states that he took no action on this appeal. Although the applicant maintains that he did not know that the ration card was in his wall locker, he does admit that it was among some items given to him by a former roommate. It it’s too incredible that the he could have an item in his possession for that length of time and never be aware of it; but even if he was not aware of it he does acknowledge that he possessed it. He further state that the applicant is a repeated violator; the offense warrants the full punishment administered. h. The applicants immediate commander submitted AE Form 113-1 (Notice of Initiation of Elimination Proceedings UP Paragraph 13-5 a(1), AR 635-200(Personnel Separations – Enlisted Personnel), dated 17 December 1975. The applicant was notified of his immediate commander’s intent to initiate action to effect his discharge from the United States Army for unfitness. i. The applicant’s immediate commander submitted AE Form 113 (Recommendation for Elimination UP Chapter 13, AR 635-200, dated 24 December 1975,. He recommended elimination from the service before the expiration of his term of service for unfitness because of frequent incidents of discreditable nature with civil or military authorities. The applicant is under military control and was not required to undergo a psychiatric examination. The applicant was also counseled on seven occasions and moved around within the unit for duty assignments and rehabilitative efforts. j. On 24 December 1975, he was advised by his consulting counsel of the bases for the contemplating action to separate him for misconduct under AR 635-200, chapter 13 and its effect; of the rights available to him; and the effects of any action taken by him in waiving his rights. He: * Requested consideration of his case before a board of officers * Requested personal appearance before the board * Provided no statements on his behalf * Requested representation by counsel * Understood that he may encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued k. On 24 December 1975, his intermediate commander recommended approval of elimination under the provisions of paragraph 13-5a(1), AR 635-200 and stated that the applicant had no rehabilitative potential and requested a waiver of the rehabilitative requirements. l. On 6 January 1976, , he was advised by his consulting counsel of the bases for the contemplating action to separate him for misconduct under AR 635-200, chapter 13 and its effect; of the rights available to him; and the effects of any action taken by him in waiving his rights. He: * Waived consideration of his case before a board of officers * Waived personal appearance before a board of officers * Provided not statements on his behalf * Waived representation by counsel * Waived psychiatric examination * Understood that he may encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued m. He was discharged from active duty on 26 January 1976. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of AR 635-200, paragraph 13-5b(3) for apathy (lack of interest), defective attitudes, and inability to expend effort constructively) with a general, under honorable conditions discharge. He completed 1 year, 11 months, and 26 days of active duty service. 4. The applicant’s record is void of evidence that show he applied for a discharge upgrade with the Army Discharge Review Board within 15 years of the separation. 5. By regulation, AR 635-200, Chapter 13 states a Soldier may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. 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 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 honorable service completed prior to a pattern of misconduct, as well as the applicant already receiving a General Discharge, the Board concluded there was 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 (AR) 635-200 (Personnel Separations-Enlisted Personnel) in effect at the time, provides for the separation of enlisted personnel. a. An honorable discharge is a separation with honor. The honorable characterization is appropriate .when the quality of the member's service generally has met, the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge c. Chapter 13 states a Soldier may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. 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) AR20170015693 0 2 1