ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	 

	BOARD DATE:  21 May 2019

	DOCKET NUMBER:  AR20180013174


APPLICANT REQUESTS:  The applicant requests upgrade of his general discharge 
under honorable conditions to honorable.


APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Monterey County Military and Veterans Affairs (VA) Office Claim Form with 
enclosed DD Form 149 and Disposition Form, Discharge from the U.S. Army, 
dated 9 June 1976 (1st page)


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.  When he was in A Battery, 2d Battalion, 8th Field Artillery, 7th Light Infantry 
Division, he was one of few Hispanics in his unit.  Most of the unit was composed of 
African-American Soldiers.  A new sergeant (SGT) showed up at the unit and he did not 
like Hispanics and he did not like him.  One day he disagreed with something technical 
in the motorpool and they argued.  The SGT threatened the applicant and told him he 
was going to kick him out of the Army.  After that matters became worse.  The SGT 
made up a number of lies about the applicant.  The sergeant said that the applicant 
failed to cope with his emotions.  That was a complete lie.  He said the applicant went to 
sick call constantly and yet nothing physically wrong could be found.  That is not true.  
The applicant asked that his medical records be checked by the Board [neither the 
applicant nor his record provides medical documents for review]. If he did go to sick call, 
there would be a record of that.
   
   b.  He believes the record to be unjust because the SGT did not like the fact that the 
applicant stood up to him when he was wrong and he had it for the applicant after that. 
He really did not like the applicant and made every effort to kick him out of the service. 
Most of those incidents he mentioned in the separation papers are complete lies.  He 
was a good Soldier and wanted an Army career.  He really did not know how this 
affected him until he enrolled in the VA Health Care System, recently.

3.  On 26 November 1974, at the age of 22 years old, he enlisted in the Regular Army 
for a term of 4 years.  

4.  On 16 January 1976, he accepted nonjudicial punishment (NJP) for failing to go to 
his appointed place of duty at the time prescribed.

5.  On 9 June 1976, the applicant's commander advised him in writing of his intent to 
separate him under the provisions of paragraph 5-37 (Expeditious Discharge Program), 
Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  The 
commander stated, in pertinent part:  

   a.  The applicant’s attitude was satisfactory in some areas of his military 
performance but those duties and requirements that do not appeal to the applicant had 
been a source of constant problems.  He had set his own value on certain duties and 
chosen to ignore those which he did not value.
      
   b.  He had an inability to adapt socially or emotionally.  He failed to cope with his 
emotions; had been counseled by numerous leaders on this emotional problems; failure 
to handle his personal problems affected his job performance ever since his arrival in 
the unit; and the applicant was given leave on several occasions to handle his 
problems, yet the problems still existed.
   
   c.  The applicant shows adequate motivation when his personal problems did not 
interfere and it serves his purpose.  The applicant would go on sick call constantly and 
yet nothing physically wrong could be found.  The applicant’s lack of self-discipline 
allowed his personal problems to persist.  The applicant failed to demonstrate promotion 
potential.
   
   d.  The notification shows the applicant was counselled on 12 occasions for but not 
limited to failure to report, disrespect to a noncommissioned officer, personal problems, 
and not maintaining his area. 

6.  The applicant acknowledged his commander's notification, affirmed he was given the 
opportunity to consult with counsel, and voluntarily accepted the discharge; he elected 
not to submit a statement in his own behalf.  

7.  On 16 June 1976, the appropriate commander approved the commander's 
recommendation and directed the applicant be issued a general discharge under 
honorable conditions discharge.  

8.  On 6 July 1976, he was discharged accordingly.  He completed 1 year, 7 months, 
and 11 days of total active service.  His DD Form 214 (Report of Separation from Active 
Duty) shows he was awarded or authorized the Rifle Marksmanship Badge.

9.  The applicant provides the Monterey County Military and Veterans Affairs (VA) Office 
Claim Form with enclosed DD Form 149 and the first page of a Disposition Form, 
subject:  Discharge from the U.S. Army, dated 9 June 1976, which shows he was being 
notified of the commander's intent to discharge him. 

10.  The applicant states his record was unjust because his discharge was the result of 
an African American SGT who was prejudice against Hispanics.  The SGT did not like 
the applicant and made every effort to kick him out of the service.  The record shows 
the applicant accepted one NJP for failing to go at the time prescribed at his appointed 
place of duty and he was counselled on 12 occasions for his deficiencies.  The applicant 
completed 12 months of his 48 months contractual obligation.

11.  AR 635-200, paragraph 5-37, in effect at the time, provided commanders could 
separate Soldiers under the Expeditious Discharge Program when they demonstrated 
they could/would not meet the Army's accepted standards for enlisted personnel.  
These Soldiers had to have served at least 6, but not more than 36 months; and could 
only be separated if they voluntarily accepted discharge.  Soldiers could receive either 
an honorable or an under honorable conditions (general) character of service.  

12.  In reaching its determination, the Board can consider the applicant's petition, his 
service record, and his statements in light of the published guidance on equity, injustice, 
or clemency.

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records and published DoD guidance for consideration of discharge 
upgrade requests.  The Board considered the applicant’s statement, the frequency and 
nature of his misconduct/performance deficiencies, the reason for his separation and 
whether to apply clemency.  The Board found no evidence of in-service mitigating 
factors and the applicant provided none in addition to his statement regarding treatment 
by his supervisor.  The applicant provided no post-service achievements or letters of 
reference in support of a clemency determination.  Based on the preponderance of 
evidence, the Board determined that the character of service the applicant received at 
separation was not in error or unjust.

2.  After reviewing the application and all supporting documents, the Board found that 
relief was not warranted.
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.


ADMINISTRATIVE NOTE(S):

Not Applicable




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, in effect at the time, prescribed policies and 
procedures for enlisted administrative separations.

	a.  Paragraph 1-9d (Honorable Discharge).  An honorable discharge was a 
separation with honor; commanders issued an honorable discharge certificate based on 
the Soldier's proper military behavior and proficient duty performance.  Commanders 
were to give due consideration to the Soldier's age, length of service, and general 
aptitude.  Where there were infractions of discipline, commanders were to assess the 
extent of those infractions as well as the seriousness of the offenses.

	b.  Paragraph 5-37 (Expeditious Discharge Program).  Commanders could separate 
Soldiers under this program when they demonstrated they could/would not meet the 
Army's accepted standards for enlisted personnel, based on having a poor attitude, lack 
of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to 
demonstrate promotion potential.  They had to have served at least 6, but not more 
than 36 months.  Soldiers were not separated unless they voluntarily accepted 
discharge, and they could receive either an honorable or an under honorable conditions 
(general) character of service.  

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 regarding equity, injustice or clemency determinations. 
Clemency generally refers to relief specifically granted from a criminal sentence and 
BCMRs may grant clemency regardless of the court-martial forum. However, the 
guidance applies to more than clemency from a sentencing in a court-martial; it also 
applies to any other corrections, including changes in discharge, which may be 
warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated 
principles in the guidance as well as eighteen individual factors related to the applicant.

ABCMR Record of Proceedings (cont)	 AR20180013174

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