ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  16 September 2019

	DOCKET NUMBER:  AR20170016634


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 293 (Application for the Review of Discharge)
*	Letter from the Office of the Adjutant General with previously submitted DD Form 
293

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 believes his discharge should be upgraded, because of the 
circumstances surrounding his discharge.  He developed marital problems while he was 
enlisted and he had to get a divorce, and subsequently he gained custody of his son 
and believes it was in his best interest to raise his child.   He took the quickest 
discharge to be able to care for his child.

3.  The applicant provides a previously submitted DD Form 293, which was returned for 
corrections.

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

a.  He enlisted in the Regular Army on 23 June 1975.

   b.  On 19 October 1976, the applicant’s immediate commander notified the applicant 
of his intent to separate him under the provisions of paragraph 5-37 Army Regulation 
(AR) 635-200 (Personnel Separations – Enlisted Separations).  The reason for his 
proposed action is the applicant’s unsatisfactory conduct and his poor performance of 
duty and his failure to adjust himself to the military service.
     c.  On 19 October 1976, he acknowledged receipt of notification of the separation 
action.  He further acknowledged:

*	the rights available to him
*	he may encounter substantial prejudice in civilian life if a general discharge, 
under other than honorable conditions is issued to him
*	he may apply to the Army Discharge Review Board for an upgrade
*	he elected not to submit statements in his own behalf

     d.  On 19 October 1976, his immediate commander initiated action to separate him 
under the provisions of paragraph 5-37, AR 635-200 for poor military conduct and 
flagrant disregard for authority.

     e.  On 28 October 1976, the separation authority approved the applicant’s discharge 
under the provisions of paragraph 5-37, AR 635-200.  He would be furnished a General 
Discharge Certificate. 

     f.  He was discharged from active duty on 2 November 1976 with a general, under 
honorable conditions characterization of service.  His DD Form 214 (Report of 
Separation from Active Duty) shows he completed 1 year, 4 months, and 10 days of 
active service.  It also shows he was awarded or authorized the Sharpshooter 
Marksmanship Qualification Badge with Rifle Bar (M-16).

5.  By regulation, a member may be separated when it is determined that he or she is 
unqualified for further military service because of unsatisfactory performance.  The 
service of members separated because of unsatisfactory performance will be 
characterized as honorable or under honorable conditions as warranted by their military 
record.

6.  The Board should 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, letters of support and post-service achievement 
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 was discharged after a relatively short term of honorable 
service for unsatisfactory behavior and was provided an under honorable conditions 
(General) characterization of service.  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 Separations), in effect 
at the time, sets forth the basic authority for the separation of enlisted personnel.

     a.  Paragraph 3-7a (Honorable Discharge) states 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.  Chapter 13 of that regulation provides a member may be separated when it is 
determined that he or she is unqualified for further military service because of 
unsatisfactory performance.  The service of members separated because of 
unsatisfactory performance will be characterized as honorable or under honorable 
conditions as warranted by their military record.

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)	 AR20170016634

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