ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 July 2019 DOCKET NUMBER: AR20180008043 APPLICANT REQUESTS: upgrade from general 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. The applicant states, in effect, he was abused over and over and his superiors supported this type of action. He states that he was the target of attempted murder and ambushed nearly the entire time because of homophobia and misconception. 3. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 26 September 1978. b. He received non-judicial punishment on/for * 28 September 1979 for disobeying an lawful order * 26 December 1979 for being absent without leave (AWOL) from 29 November 1979 to 30 November 1979, reduced to private/E-1 c. On 9 January 1980, immediate commander notified the applicant of his intent to initiate separation action under the provisions of Army Regulation (AR) 635-200, (Enlisted Personnel-Personnel Separations) chapter 5-31, failure to maintain acceptable standards for retention. He has an apathetic attitude toward military service in general, frequent lateness. He has stated to his superiors that he does not wish to stay in the Army. He cannot adjust to the military life. He is an unstable influence to the unit. His presence in the unit is a disturbing influence in the maintenance of high morale and discipline. The applicant acknowledged on the same date. a. d. On 9 January 1980, he acknowledged receipt and was advised of the basis for the contemplated action to separate him misconduct under the provisions of AR 635-200, (Personnel Separations – Enlisted Personnel) chapter 5-31, its effect, of the rights available to him, and the effect of any action taken by him in waiving his rights. He acknowledged: * he had been afforded the opportunity to consult counsel * that he was being consider for service characterization under other than honorable conditions * understood that he could expect to encounter substantial prejudice in civilian life if a discharge under other than honorable conditions was issued to him * understood that as the result of issuance of a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life e. Following acknowledgement, on 20 February 1980, the commander recommended approval and furnished a general discharge f. On 20 February 1980, the separation authority approved separation under AR 635-200, chapter 5-31 with the issuance of an under honorable (general) conditions discharge. Service Member will not be transferred into the Individual Ready Reserves (IRR) upon separation. g. On 14 March 1980, the applicant was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for failure to maintain acceptable standards for retention under chapter 5-31 of AR 635-200. It shows he completed 1 year 5 months 19 days of active service. 4. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 5. By regulation (AR 635-200), 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 US Army may be discharged in accordance with the following criteria. Discharge under the provisions of this paragraph is limited to: 6. In reaching its determination, the Board can consider the applicant’s petition and her 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 were carefully considered. The Board applied Department of Defense standards 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 the Board could consider for a clemencydetermination. The Board found that he was discharged for failure to maintain acceptable standards for retention and was provided an under honorable conditions (General) characterization of service. There was no evidence to corroborate his contention he was discriminated against due to homophobia and misconception. 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; they found 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. 8/19/2019 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. By regulation, AR 635-200 (Personnel Separations – Enlisted Personnel) 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. 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 3-7b (General discharge) (1) states A general discharge is a separation from the Army under honorable condition of an individual 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 record. c. Paragraph 3-7c (General discharge) (2) states a general discharge may be issued if an individual has been convicted of an offense by general court-martial or has been convicted by more than one special court-martial In the current enlistment period or obligated service or any extension thereof. The decision is discretionary; if there is evidence that the individual's military behavior has been proper over a reasonable period of time subsequent to the conviction(s), he may be considered for an honorable discharge. d. Paragraph 3--7c (General discharge) (3) states a member’s service may be characterized as general by the commanding officer authorized to take such action or higher authority when the member is eligible for or is subject to separation and it has been determined, under the prescribed standards, that separation is warranted 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 1. 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. //NOTHING FOLLOWS//