ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 August 2019 DOCKET NUMBER: AR20170017049 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge to honorable. 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. A review of the applicant’s service records show: a. He enlisted in the Regular Army on 27 December 1978. b. He served in Germany from 5 June 1979 to 19 July 1980. c. On 10 June 1980, his immediate commander notified the applicant he was initiating action to discharge him from the U.S. Army under the provisions of paragraph 5-31, Army Regulation (AR) 635-200 (Enlisted Personnel – Personnel Separations) (Expeditious Discharge Program (EDP)). He was recommending the applicant be furnished a General Discharge Certificate. The reason for his proposed action was since the applicant’s assignment to the unit, he displayed an inability to adjust to military life. His actions were disrupting to other members of the unit and could not be tolerated by the command. His apathetic attitude was counterproductive to the welfare of the unit. d. On 18 June 1980, the applicant was advised of his rights and options under chapter 5 of AR 635-200 (EDP). He was informed of the effects of a General or Honorable Discharge Certificate. a. e. On 20 June 1980, the applicant submitted a statement on his own behalf addressed to his commander. He stated: (1) He arrived in Germany on 5 June 1979. Upon his arrival, he was told he would not like the company. He told himself not to judge the company until he had been there a year. Months went by without any trouble and then on 15 October 1979, he had a fight in the hallway of the barracks. He was called in to see the company commander and was read his rights for an Article 15. He had harsh words with a noncommissioned officer (NCO) after that. He told a superior officer that he did have harsh words with the NCO, but he was provoked. He was told to carry the guidon and he did not. He could cope with anything, but refused to be verbally or physically harassed. (2) It was not the Army that caused his attitude it was the way the Army treated people. He asked to be transferred to another company. He did not like the Army and asked the commander for a way out of the Army. f. On 30 June 1980, consistent with the chain of command recommendation, the applicant’s separation was approved by the battalion commander. He would be issued a General Discharge Certificate. g. On 21 July 1980, the applicant was discharged from active duty. His DD Form 214 shows he completed 1 year, 6 months, and 25 days of active service. It also shows he was awarded or authorized the Expert Marksmanship Badge with Rifle Bar (M-16). 3. By regulation, members who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army may be separated when they have failed to respond to counseling. 4. 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, his statement, the frequency and nature of his misconduct and the reason for his separation were carefully considered. The Board applied Department of Defense guidance for consideration of discharge upgrade requests 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 for a clemency determination. He was discharged after failing to adapt to military life and was provided an Under Honorable Conditions (General) characterization of service. Based on a preponderance of evidence, the Board determined 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; there was no error or injustice. 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. 9/25/2019 X CHAIRPERSON Signed by: 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 (Enlisted Personnel – Personnel Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an Honorable Discharge Certificate is predicated upon proper military behavior and proficient performance of duty during the member’s a. current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 5-31 (Expeditious Discharge Program) states that members who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army because of existence of one or more of the following conditions may be separated when they have failed to respond to counseling: * Poor attitude * Lack of motivation * Lack of self-discipline * Inability to adapt socially or emotionally * Failure to demonstrate promotion potential 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//