ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 July 2019 DOCKET NUMBER: AR20180005809 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge 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 he was looking into his Veterans Administration benefits for housing, medical and burial. However, he was told by his superiors at the time, that after 6 months, his general discharge would turn to an honorable. He was unaware that he had to apply for the upgrade until now. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 6 June 1977. b. He accepted non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on and for the following offenses: * On 14 March 1978, for departing his unit in an absent without leave (AWOL) status on 2 March 1978 and did not return to military control until 5 March 1978 * On 19 March 1979, for absenting himself from his place of duty on 1 March 1979 and for failing to go to, at the time prescribed, his appointed place of duty on 2 March 1979 * On 16 April 1979, for being found drunk while performing extra duty on 20 March 1979 and for operating a vehicle in a reckless manner by speeding and injuring another Soldier on 15 March 1979 – he was reduced to private/E-1 * On 26 July 1979, for absenting himself from his appointed place of duty on 14 July 1979 c. The applicant's immediate commander notified him on that he was initiating action to separate him from the service, under the provisions of Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel), Chapter 5 (Expeditious Discharge Program (EDP)), with a General Discharge Certificate. As reasons for the proposed separation action, the applicant's commander cited substandard performance, poor attitude and hostility towards his superiors. d. On 24 September 1979, the applicant acknowledged receipt of the proposed separation notification and elected not to submit a statement on his own behalf. e. His commander recommended he be discharged under the provisions of AR 635- 200, Chapter 5 and receive a general under honorable conditions discharge characterization. f. Consistent with the commander’s recommendation, the separation authority approved his request for discharge under the provisions of AR 635-200, chapter 5, and directed the issuance of a general under honorable conditions discharge. g. On 25 October 1979, the applicant was discharged from active duty under the provisions of AR 635-200, chapter 5. The applicant’s DD Form 214 shows he completed 2 years, 4 months, and 16 days of active service. It also shows he was authorized or awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-16). 4. By regulation, 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. 5. 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. 1. 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 for a pattern of misconduct; the Board found no evidence of in-service mitigating factors. The Board found no evidence that the applicant accepted responsibility or showed remorse for the events leading to his separation. The applicant provided no evidence of post-service achievements or letter sof reference in support of a clemency determination. Based on a preponderance of evidence, the Board agreed that the applicant's discharge characterization is warranted; there is no evidence of 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. 8/6/2019 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 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable) provides 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. b. Paragraph 1-9e (General) provides that a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharged by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. c. Chapter 5 (Separation For the Convenience of the Government) sets forth the conditions under which enlisted personnel may be discharged, released from active duty or active duty for training, or released from military control, for the convenience of the government with service characterized as honorable or under honorable conditions, as appropriate. d. Paragraph 5-31a (Expeditious Discharge Program-EDP) of this section provides 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. All members separated under this paragraph will be released from active duty and transferred to the Individual Ready Reserve to complete their service obligation, except those whom the separation authority (h below) determines, for some specific reason, have no potential for useful service under conditions of full mobilization. e. Paragraph 5-31h (2) states that commanders specified in paragraph 1-32 and lieutenant colonels (05) who are commanders of battalions and battalion size units are authorized to order separation under this program. This authority may not be delegated. Separation will be specified in 1 and 2 below: a. * release from active duty and transfer to the IRR to complete their military service obligation those members deemed to have the potential for service under on conditions of full mobilization * discharge those members deemed to have no potential for useful service under conditions of full mobilization 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//