ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  5 June 2019

	DOCKET NUMBER:  AR20180013162


APPLICANT REQUESTS:  an upgrade of his general discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Separation Packet
* DD Form 214 (Report of Separation from Active Duty)
* National Personnel Records Center (NPRC) Letter

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 would like an upgrade of his discharge to honorable as he does not recall having any counseling sessions about any negative behavior.  He certainly did not have any issues adjusting to Army life, his peers, or his supervisors.  He does not feel that if his performance was poor enough to be discharged that he would have been promoted less than a year prior to his expiration time of service (ETS) or to be considered for an upgraded security clearance.

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

a. He enlisted in the Regular Army (RA) on 17 June 1974 for a period of 3 years.

b. He held military occupational specialty 95B (Military Police).  His record is void of
any counseling sessions pertaining to his behavior. 

	c.  The applicant’s immediate commander notified the applicant of his intent to discharge him under the provisions of chapter 5, paragraph 5-37, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for failure to meet acceptable standards for continued military service.  His commander stated the applicant had failed to adjust to the Army environment as well as socially and emotionally with his peers and supervisors.  His aptitude and attitude did not meet the expectations that the Army requires.  The applicant was counseled several times but the sessions did not elicit any improvement. 

	d.  On 4 December 1975, he consulted with legal counsel and was advised of the rights available to him and the effect of a waiver or his rights.  He acknowledged receipt and understood if he was issued a general discharge under honorable conditions he may expect to encounter substantial prejudice in civilian life.  He did not submit a statement on his behalf.

	e.  His unit commander recommended elimination from the service for substandard performance.

	f.  On 15 December 1975, consistent with the chain of command recommendation, the separation authority approved the applicant's discharge under the provisions of chapter 5, paragraph 5-37, AR 635-200 for failure to meet acceptable standards for continued military service.  He was furnished a General Discharge Certificate.

	g.  On 23 December 1975, he was discharged from active duty with an under honorable conditions characterization of service.  His DD Form 214 shows he completed 1 year, 6 months, and 7 days of active service.  It also shows he was awarded or authorized:

* National Defense Service Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)

4.  By regulation, 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 U.S. Army may be discharged.  

5.  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 review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief.  Based upon the relatively short term of service completed prior to a pattern of misconduct described within the administrative separation documents, as well as the lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to his discharge, the Board concluded that the characterization of service received at the time of discharge 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.  AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set 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 is conditioned 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 5-37 (Discharge for Failure to Demonstrate Promotion Potential) of the regulation states that 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 U.S. Army may be discharged.  Discharge under the provisions of this paragraph is limited to:

* personnel who fail to be advanced to the grade of E-2 after 4 months of active duty
* personnel who fail to demonstrate potential to justify advancement to the grade of E-3 after attaining the normal time-in-service and time-in-grade criterion for promotion to grade E-3, without waiver

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)	 AR20180013162


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