ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  8 August 2019

	DOCKET NUMBER:  AR20180008798


APPLICANT REQUESTS:  an upgrade to his under honorable conditions (general) discharge and a personal appearance before the Board.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* Constituent Request for Service (Congress of the United States), dated 16 May 2018

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 (ABCMR) 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 stated he feels his current discharge does not accurately reflect his career in the military.  He believes his service time in Germany better depicts his character.  He experienced a lot of prejudice at Fort Riley, which led him to pursue other avenues to further his military career.  He attempted to contact the inspector general to report his treatment but after failing to be able to get in contact with them he chose to accept an inaccurate discharge in an effort to escape the prejudice he was facing.

3.  The applicant provided the following:  

	a.   His DD form 214, showing his service from 30 October 1979 to 13 July 1982.  

	b.  A constituent request for service to a Member of Congress, dated 16 May 2018, showing the federal agency involved as the Veterans Affairs Administration

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

a. He enlisted in the Regular Army on 30 October 1979.
   
   b.  He served in Germany from 8 February 1980 to 13 January 1982.

c. He received nonjudicial punishment under Article 15 on:  

* 30 January 1981, for disobeying a lawful order from a superior noncommissioned officer, he was reduced to private E-1
* 17 May 1982, for  disobeying a lawful order from a superior noncommissioned officer, he was reduced to E-2

	d.  On 24 May 1982, a bar to reenlistment was imposed against the applicant and approved.

   e.  On 22 June 1982, the applicant was notified by his immediate commander of the proposed discharge under the provisions of Army Regulation (AR) 635-200 (Enlisted Personnel – Personnel Separations), paragraph 5-31, Expeditious Discharge Program (EDP) for the following reasons:

* While assigned to the unit his performance had been marginal
* He was constantly on sick call and caused hardship on his platoon
* He had been referred to drug and alcohol for evaluation
* He had received numerous counselling for failure to repair by his chain of command, with no satisfactory results

	f.  On 23 June 1982, the applicant acknowledged the following:

* he voluntarily consented to discharge from the United States Army
* he may encounter substantial prejudice in civilian life
* he was provided the opportunity to consult with counsel
* he may withdraw his voluntary consent for the discharge prior to discharge approval
* he will not be permitted to apply for enlistment in the United States Army within 2 years from his date of separation
* he understands that there is no automatic upgrading nor review by any government agency of a characterization of service which is under honorable conditions, and that he must apply to the ABCMR if he wish review of characterization of service
* if he declines to accept the discharge voluntarily, he may be subject to separation under other provisions of law or regulation

	g.  Following the acknowledgement, the applicant’s immediate commander initiated discharge proceeding from the Army under the provisions of paragraph 5-31, EDP, 
AR 635-200 for marginal duty performance, referred to drug and alcohol for evaluation, and numerous counseling’s on duty performance.  He recommended a general discharge.  
	h.  On 8 July 1982, the separation authority approved the applicant’s discharge under the provisions of AR 635-200 (Personnel Separations-Enlisted Personnel) , paragraph 5-31, EDP for failure to maintain acceptable standards for retention and directed that he receive a characterization of under honorable conditions.  

i. On 13 July 1982, he was released from active duty and transferred to United
States Army Reserves (USAR) under the provisions of AR 635-200 paragraph 5-31, and a characterization of under honorable conditions, general.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he had 2 years, 8 months and 14 days active service this period.  It also shows he was awarded or authorized:

* Army Service Ribbon
* Overseas Service Ribbon
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* 1st Class (Hand Grenade)

5.  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. 

6.  By regulation AR 635-200, 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 of 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.  Paragraph 1-13 (b) (General discharge) 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.

7.  By regulation, applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

8.  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.


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 it could reach a fair and equitable decision in the case without a personal appearance by the applicant.

Additionally, the Board concluded that based upon a pattern of misconduct which led to the applicant’s separation, as well as a lack of post-service character evidence submitted by the applicant to show that he had learned and grown from the events leading his discharge, the Board concluded that there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s 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 1-13 (1) (Honorable discharge) states 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 members’ current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude.  

   b.  Paragraph 5-31  Expeditious Discharge Program (EDP),  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 condition maybe separated when they have failed to respond to counseling. (DA Form 4856, General Counseling Form).  All members separated under this paragraph will be released from active duty and transferred to the inactive ready reserve (IRR) to complete their obligation, except those whom the separation authority whom the separation authority determines, for some specific reason have no potential for useful service under conditions of full mobilization.

3.  Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

4.  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)	 AR20180008798


2


1