ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  22 July 2019

	DOCKET NUMBER:  AR20180008482


APPLICANT REQUESTS:  an upgrade of his general under honorable conditions discharge to honorable.

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 he did not understand the status of his discharge when he received it.

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

	a.  He enlisted in the Regular Army on 15 January 1975.

	b.  He received nonjudicial punishment (NJP) under the provisions of Article 15 on/for the following:

* 15 February 1975, violated restriction and absent without leave from 
7-10 February 1975, forfeiture of $80 pay and restriction for 7 days
* 13 May 1975, had about one ounce of marijuana, verbal reprimand, reduction to private E-2, forfeiture of $150 pay per month for 2 months, restriction, and extra duty
* 17 July 1975, for failure to go to his prescribed place of duty, forfeiture of $25 pay, and extra duty

	c.  On 14 November 1975, his immediate commander notified the applicant of his intent to discharge him under the provisions of paragraph 5-37, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) with a general discharge.  The reason for his proposed action is due to the applicant’s inability to socially adapt to the military environment, leak (i.e. lack) of motivation, and failure to favorably respond to repeated counseling and NJP.

	d.  On 17 November 1975, he acknowledged receipt of the proposed separation.  He voluntarily consented to this discharge and indicated that he understood:

* if he was furnished a general discharge, he may expect to encounter substantial prejudice in civilian life
* he had the opportunity to consult with legal counsel
* he waived statements on his own behalf

	e.  On 17 November 1975, his immediate commander requested the applicant be processed for an expeditious discharge in accordance with (IAW) paragraph 5-37, AR 635-200. 

	f.  On 26 November 1975, the separation authority approved the applicant’s discharge under the provisions of paragraph 5-37, AR 635-200, for failure to meet acceptable standards for continued military service and directed that he receive a General Discharge Certificate.

	g.  On 3 December 1975, he was discharged from active duty under the provision of paragraph 5-37, AR 635-200, with an under honorable conditions characterization of service.  His DD Form 214 shows that he had 10 months and 16 days of active service.  He had 3 days of lost time.  It also shows he was awarded or authorized the Sharpshooter Marksmanship Qualification Badge (M-16).

4.  By regulation, discharges under this chapter provides that individuals who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions, may be discharged for:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  It also state 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 because of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record.

5.  In reaching its determination, the Board can consider the applicant's petition and his service record IAW 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.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  He was discharged after a pattern of misconduct 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) sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 1-9d, states that an honorable discharge is a separation with honor.  Issuance of an Honorable Discharge Certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude.

	b.  Paragraph 1-9e, states that a general discharge is a separation from the Army under honorable conditions.  It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  The recipient of a general discharge is normally a member whose military record and performance is satisfactory.

	c.  Paragraph 5-37 of the regulation in effect at the time provided for the discharge of enlisted personnel who had completed at least 6 months but less than 36 months of active duty and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  No individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge.  Individuals discharged under this regulation were issued either a general or honorable discharge.

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//

ABCMR Record of Proceedings (cont)	AR20180008482


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