ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  25 July 2019

	DOCKET NUMBER:  AR20180008059


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions discharge

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 the first three years of his service were honorable. He was proud to be an 11B (Infantryman) with airborne training at Fort Benning.  He made one poor decision, which he deeply regrets.  In his civilian life he was fully employed, until 1992 when he had an accident that injured his lower back.  He is now on social security disability at 100 percent.  He recently discovered that an appeal could be made for a possible upgrade.

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

a.  He enlisted in the Regular Army on 24 August 1971.

b.  He received/accepted non-judicial punishment (NJP) on/for:

* on or about 27 June 1972, for violating a lawful general regulation by possessing 12 boxes of ten rounds of shot gun ammunition; operating a vehicle without a valid post registration and operating a vehicle in a reckless manner
* on or about 19 April 1974, for failing to report to his place of duty and using disrespectful language towards a superior Noncommissioned Officer


   c.  On 15 August 1974, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Paragraph 13-12a (1) for unfitness.
   
   d.  On 15 August 1974, the applicant acknowledged receipt of the commander’s intent to separate him, and subsequently, consulted with legal counsel.  He further acknowledged:
   
* the rights available to him and the effect of waiving said rights
* he could expect to encounter substantial prejudice in civilian life if the general discharge under honorable conditions was issued to him
* he may be ineligible for many or all benefits as a veteran under both federal and state law
* he may expect substantial prejudice in civilian life

   e.  On or about 20 August 1974, he received NJP for wrongfully possessing two ounces more or less of marijuana.

   f.  Consistent with the chain of command recommendations the separation authority approved the applicant’s discharge on 21 August 1974, under the provisions of AR 635-200, Chapter 13 for unfitness.  He was reduced to the lowest pay grade of Private/ E-1 and issued an Undesirable Discharge Certificate.
  
   g.  He was discharged on 10 September 1974.  His DD Form 214 shows he completed 3 years and 17 days of total 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, action will be taken to separate a member when it is determined that he is unqualified for further military service because of unsatisfactory performance.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under AR 635-200, Chapter 13.

6. The Board should consider the applicants petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.  


BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon a pattern of misconduct, which included violent behavior towards others, the Board concluded that the characterization of service received at the time of separation was appropriate.

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 (AR) 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 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 or current period of service with due consideration for the member’s age, length of service, grade and general aptitude.
   
   b.  Paragraph 1-9e (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.  When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security.

   c. Paragraph 1-9f (Undesirable Discharge) states an undesirable discharge is an administrative separation from the Service under conditions other than honorable.  It may be issued for unfitness, misconduct, homosexuality, or for security reasons.

   d.  Chapter 13 of that regulation provides action will be taken to separate an individual for unfitness when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory soldier, further effort is unlikely to succeed.  An individual separated by reason of unfitness will be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstance in his case.

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 (BCMNRs) 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 court-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.  AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.



ABCMR Record of Proceedings (cont)	 AR20180008059


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