ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  13 August 2019

	DOCKET NUMBER:  AR20180003577


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 ( Report of Separation from Active Duty)

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 just 17 years old at the time of his discharge.  He was too young and was not correctly informed by his parents, as to what was really happening.  He was confused, scared and was not properly prepared for the military life.  Upon his discharge, he was informed that if he stayed out of trouble for six months he could request for it to be changed.  He has not been in any trouble with the law nor does he have a criminal record. 

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

	a.  He enlisted in the Regular Army on 2 April 1975.  

	b.  He accepted nonjudicial punishment (NJP) on/for:

* 23 April 1975 for failing to go at the time prescribed to his appointed place of duty 
* 9 July 1975, for being absent without leave (AWOL)

	c.  On 21 July 1975, his commander notified the applicant that he was initiating action to discharge him under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13 because of unsuitability.

	d.  On 25 July 1975, the applicant indicated he would not be submitting statements on his behalf.  He also acknowledged he had been advised by consulting with counsel on:

* the rights available to him
* the effect of any action taken by him in waiving his rights
* understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him

   e.   Consistent with the chain of command’s recommendation, the separation authority approve the discharge in accordance with AR 635 200, Chapter 13, waived the requirement for a rehabilitative transfer and directed he be discharged with a general discharge certificate.

   f.  His DD Form 214 shows he was discharged on 6 August 1975, with a character of service as under honorable conditions (General).  He completed 3 months and 6 day of net active service.

4.  The applicant’s record is void of evidence indicating he applied for a discharge upgrade with the Army Discharge Review Board within 15 years of the separation

5.  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 discharged as a trainee after a lengthy period of AWOL and was provided an under honorable conditions (General) characterization of service.  The Board agreed that the applicant was in an entry level status and that he should have received an uncharacterized character of service reflecting he was not in long enough to warrant a characterization.  However, the Board agreed not change the record to make him worse off, and determined the 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, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 13 provided for separation of individuals due to unsatisfactory performance when, in the commander's judgment:

* the individual would not become a satisfactory Soldier
* retention would have an adverse impact on military discipline, good order, and morale
* the service member would be a disruptive influence in the future
* the basis for separation would continue or recur
* the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely
	
	b.  Service of Soldiers separated because of unsatisfactory performance was characterized as honorable or under honorable conditions.

	c.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

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.  

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180003577


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