ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 9 July 2019 DOCKET NUMBER: AR20180005264 APPLICANT REQUESTS: upgrade of his general under honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States) 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, in effect, he needs to have his general discharge upgraded to honorable due to a Veterans benefit organization (VAMC B’ham – assumed to be Veterans Affairs Medical Center, Birmingham, AL) will not allow him access to benefits with a general discharge. 3. A review of the applicant’ service record shows: a. He enlisted in the Regular Army on 30 November 1973. b. On 24 June 1975, he accepted non-judicial punishment under the provisions of Article 15 for wrongfully having approximately 2 ounces of marijuana in his possession. His punishment consisted, in part of, a reduction in rank to private first class/E-3. c. On 2 July 1975, his immediate commander notified him that he initiated separation action against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), Chapter 5, (paragraph 5-37), with potential to receive a General Discharge Certificate for demonstrated deficiencies in: * attitude * inability to adapt socially or emotionally * lack of motivation * self-discipline * failure to demonstrate promotion potential d. On 3 July 1975, the applicant acknowledged the notification of his proposed discharge, advisement of his rights, and voluntarily consented to discharge from the U.S. Army. He acknowledged he was provided access to legal counsel, but did not desire to consult with counsel. He also acknowledged: * that if he was issued a general discharge under honorable conditions, he may expect to encounter substantial prejudice in civilian life * that he waive his right to submit a statement on his behalf e. On 3 July 1975, his immediate commander recommended him for discharge from the U.S. Army. f. On 10 July 1975, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, paragraph 5-37 for failure to meet acceptable standards for continued military service. He ordered the applicant be furnished a General, Under Honorable Conditions Discharge Certificate. i. On 17 July 1975, the applicant was discharged. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged with the narrative reason for separation “Paragraph 5-37, AR 635-200. The applicant received a general under honorable conditions discharge character of service. He served 1 year, 7 months, and 18 days of creditable active service, with no lost time. He was awarded the National Defense Service Medal. 4. By regulation (AR 635-200), Paragraph 5-37, in effect at the time, provides in part, personnel whose performance of duty, acceptability for the service, and potential for continued effective service fall below the standards required for enlisted personnel in the U.S. Army may be discharged. 5. The Board should consider the applicant’s submission 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. The applicant did not accept responsibility for his actions nor show remorse during this application process. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. He was discharged for a criminal offense and a poor performance, 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 Personnel), in effect at the time, governs the separation of enlisted personnel. a. Paragraph 1-9d provides an honorable discharge is a separation with honor. The issuance of an honorable discharge is conditional 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. b. Paragraph 19e provides a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 5-37, in effect at the time, provides, personnel whose performance of duty, acceptability for the Service, and potential for continued effective service fall below the standards required for enlisted personnel in the U.S. Army may be discharged. 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 on the basis of 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) AR20180005264 4 1