ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  23 July 2019

	DOCKET NUMBER:  AR20180008317


APPLICANT REQUESTS:  an upgrade to his general discharge 

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:  

     a.  He had two Field Grade Article 15’s while serving in Korea.  He was scared about getting into trouble in a foreign country and the possible actions taken against him, due to prejudices because of his race, so he requested a Chapter 5 discharge (Unable to Adapt to Military Life).  

     b.  At the time, he just wanted to leave with a clean record, but he feels strongly that if the social environment had not been the way they were then, he would not have been afraid to stay in the military and serve his country proudly.  His option was taken away from him due to prejudices.  He is now requesting an upgrade to his discharge.

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

	a.  He enlisted in the Regular Army on 27 June 1975.

	b.  He served overseas in Korea from 11 January 1976 until 16 April 1976.

	c.  On 29 March 1976, the applicant's immediate commander notified him 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 two Article 15’s and a counseling statement charging the applicant with wrongful use of marijuana and having a dangerous weapon as the reasons for this action.

	d.  On 31 March 1976, 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 discharge certificate.

	f.  Consistent with the commander’s recommendation, the separation authority approved his request for discharge and directed the issuance of a general, under honorable conditions discharge.  

	g.  On 19 April 1976, 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 9 months and 23 days of total active service with 1 month and 5 days of inactive service with no lost time.  It also shows he was authorized or awarded the Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  There is no evidence the applicant has applied to the Army Discharge Review Board for an upgrade of his discharge.    

5.  By regulation, 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.

6.  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 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 the misconduct, the relatively short term of service and the applicant already receiving a General Discharge, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s discharge characterization of service.


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, 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 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 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 5-37 (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 discharged
   
* Poor Attitude
* Lack of Motivation
* Lack of Self Discipline
* Inability to adapt socially or emotionally
* Failure to demonstrate promotion potential

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.


ABCMR Record of Proceedings (cont)	 AR20180008317


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