ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  10 July 2019

	DOCKET NUMBER:  AR20170016137


APPLICANT REQUESTS:  upgrade general under honorable conditions discharge to an honorable 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 he was given a general under honorable conditions discharge in 1977 which he is requesting to have upgraded to honorable.

3.  A review of the applicant’s records shows:

	a.  He enlisted in the Regular Army (RA) on 16 September 1976.

	b.  He accepted nonjudicial punishment on/for:

* 9 September 1977, without authority, absenting himself from his unit, his punishment included reduction to private(PVT)/E-2
* 10 November 1977, without authority, failing to go at the time prescribed to his appointed place of duty, his punishment included reduction to PVT/E-1 (suspended for 30 days)
* 28 November 1977, without authority, failing to go at the time prescribed to his appointed place of duty, his punishment included reduction to PVT/E-1

   c.  He was notified, on 5 December 1977, by his unit commander that proceedings were being initiated to discharge him from the U.S. Army under provisions of paragraph 5-37 (Expeditious Discharge Program), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations) and recommending that he be furnished a general under honorable conditions discharge certificate for the following reasons:

* three Article 15s for absent without leave and failure to repair
* numerous counseling statements reflecting substandard performance
* failure to meet military standards after attendance of the correctional custody facility
* his own stated desire to be discharged coupled with his apathetic attitude and slovenly appearance

   d.  On 5 December 1977, he acknowledged the notification of his proposed discharge under provisions of paragraph 5-37, AR 635-200.  He acknowledged:

* he consented to voluntary discharge
* he did not submit statements in his own behalf
* he may expect to encounter substantial prejudice in civilian life
* he was provided the opportunity to consult with legal counsel
* he understood that he may withdraw his voluntary consent to discharge
* he understood if he declined to accept the discharge voluntarily he may be subject to separations under other provisions of law or regulation
* he may have unearned portions of enlistment or reenlistment bonuses recouped
* he waived his right to consult with legal counsel

   e.  On 7 December 1977, his unit commander initiated discharge proceedings under the provisions of the Expeditious Discharge Program.

   f.  On 9 December 1977, the separation authority approved the discharge of the applicant under provisions of paragraph 5-37, AR 635-200 and directed that he be furnished a general under honorable conditions discharge certificate.

	g.  He was discharged from active duty on 12 December 1977 with a general under honorable conditions characterization of service.  His DD Form 214 shows he completed 1 year, 2 months, 12 days of active service with 15 lost days.  It also shows that he was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  The applicant applied to the Army Discharge Review Board (date of the board is unknown).  His application for an upgrade of his discharge was denied per letter dated 12 May 1982.

5.  By regulation 635-200 (Personnel Separations – Enlisted Separations) the program provides that individuals who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army, because of the existence of one or more of the following conditions, may be discharged; poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.

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 relief is not warranted.  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.  He was expeditiously discharged for a pattern of misconduct including criminal offenses, and was provided an under honorable conditions (General) characterization of service.  He failed to accept responsibility and show remorse for the events leading to his separation.  The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

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, provides for the separation of enlisted personnel:

	a.  Paragraph 1-9d (Honorable Discharge) states that 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.  Where a member has served faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks, he may be furnished an honorable discharge.

	b.  Paragraph 5-37 (Expeditious Discharge Program (EDP)), the program provides that individuals who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army, because of the existence of one or more of the following conditions, may be discharged; poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  Individuals discharge under the EDP may be awarded an honorable or general discharge certificate as appropriate.  No member shall be awarded a general discharge under this paragraph unless given the opportunity to consult with an appointed counsel for consultations.

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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170016137


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