ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  31 January 2019

	DOCKET NUMBER:  AR20180013283


APPLICANT REQUESTS:  an upgrade of his under honorable conditions (general)

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)
* DD Form 293 (Application for the Review of Discharge)
* Under Honorable Discharge Certificate

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 was told his general discharge would automatically adjust to honorable when given an under honorable conditions.

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

a.  He enlisted in the Regular Army on 30 June 1976.

	b.  He accepted nonjudicial punishment on/for:

* 11 August 1976, for failure to keep wall locker locked, an order which it was your duty to obey.  He performed extra duty for ten days, forfeiture of pay for one month, restricted to company area for ten days
* 17 September 1976, stole property at the main Post Exchange, forfeiture of pay for one month

   c.  The applicant's immediate commander notified the applicant that he intended to recommend his discharge from the Army under the provisions of Army Regulation (AR) 635-200, (Personnel Separations – Enlisted Personnel) paragraph 5-37 (Expeditious Discharge Program (EDP)).  He recommended a general discharge and cited the specific reasons as the applicant’s poor attitude, lack of self-discipline, inability to adapt emotionally, and quitter attitude.  His commander advised him of the rights available to him, and of the effect of any action taken by him to waive his rights.  He further advised him that he would recommend that he receive a general discharge.  

   e.  On 26 June 1977, the applicant acknowledged receipt of the proposed separation memorandum, consulted with counsel and waived his right to submit a statement in his own behalf.  He acknowledged that he may encounter substantial prejudice in civilian life if he received a general discharge, under honorable conditions.  He voluntarily consented to the separation.  

   f.  The applicant's commander formally recommended his separation from service on 26 June 1977, under the provisions of AR 635-200, paragraph 5-37, based on his prior record of misconduct.

   g.  The separation authority approved the applicant's discharge on 26 June 1977 and directed that his service be characterized as general, under honorable conditions.

   h.  The applicant was discharged on 12 July 1977  His DD Form 214 (Report of Separation from Active duty) confirms he was discharged under the provisions of AR 635-200, paragraph 5-37, and his service was characterized as under honorable conditions (general).  Item 9c (Authority and Reason), contains the entry “AR 635-200 Para 5-37 (Separation Program Designator (SPD) JGH.  It also shows he completed 1 year and 20 days of creditable active military service.

   i.  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 

4.  By regulation (AR 635-200), Paragraph 5-37 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.

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 reviewing the application and all supporting documents, the Board found relief was not warranted. Board members noted he had a history of misconduct including theft.  Board members noted that his chain of command pointed out his poor attitude, failure to perform duties in a proper manner, and other things.  He received a general discharge.  In reaching its determination, the Board did consider the applicants petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.  Based upon the documentary evidence provided by the applicant and found within the military service record, the Board concluded that there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s record.
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 (AR) 635-200 (Personnel Separations – Enlisted Separations), in effect at the time, sets for 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 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 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)	 AR20180013283


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