ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

	BOARD DATE:  9 April 2019

	DOCKET NUMBER:  AR20180014464


APPLICANT REQUESTS:  His under honorable conditions (general) discharge be 
upgraded to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. 
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 states he was allowed to enlist while not eligible.  He was released but 
had prior military experience.  Over 40 years have passed since his discharge.

3.  The applicant enlisted in the Regular Army on 3 December 1975.

4.  The applicant accepted non-judicial punishment (NJP), under the provisions of 
Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions:

*	on 25 May 1976, for failing to go at the time prescribed to his appointed place of 
duty, on or about 18 May 1976
*	on 15 June 1976, for failure to go at the time prescribed to his appointed place of 
duty, on or about 6 June 1976
*	on 23 July 1976, for being absent without leave (AWOL) from on or about 9 July 
1976 through on or about 16 July 1976

5.  The applicant's immediate commander notified the applicant on 7 September 1976 
that he was initiating actions to separate him from service under the provisions of Army 
Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-37 
(Expeditious Discharge Program (EDP)), with a General Discharge Certificate.  As 
reasons for the proposed separation action, the applicant's commander cited one letter 
of reprimand, two company grade Article 15s and one field grade Article 15.

6.  The applicant acknowledged receipt of the proposed separation notification on  
9 September 1978.  He voluntarily consented to the separation and elected not to 
submit a statement in his own behalf.  He further acknowledged that he could expect to 
encounter substantial prejudice in civilian life if he were issued a general discharge.

7.  The separation authority approved the separation action on 13 September 1976 and 
directed the issuance of a General Discharge Certificate.

8.  The applicant was discharged on 29 September 1976.  His DD Form 214 (Report of 
Separation from Active Duty) shows he was credited with 9 months and 19 days of net 
active service.  His service was characterized as under honorable conditions.

9.  The Board should consider the applicant's statement and overall record in 
accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The board applied Office of the Secretary of 
Defense standards of liberal consideration and clemency to the complete evidentiary 
record, including the applicant’s statement and did not find any evidence of error, 
injustice, or inequity; the applicant had limited creditable service, no wartime service 
and no mitigating circumstances for the misconduct.  The record also indicates that the 
chain of command took actions to rehabilitate the applicant. The Board agreed that the 
applicant’s discharge characterization is appropriate for the misconduct.


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 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 sets forth the basic authority for the separation of enlisted 
personnel.

	a.  Paragraph 3-7a states an honorable discharge is a separation with honor and 
entitles the recipient to benefits provided by law.  The honorable characterization is 
appropriate when the quality of the member’s service generally has met the standards 
of acceptable conduct and performance of duty for Army personnel, or is otherwise so 
meritorious that any other characterization would be clearly inappropriate.

	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 provision of the 
regulation were issued either a general or honorable discharge.

3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military Discharge Review Boards and Boards for Correction of Military/Naval Records 
on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency 
generally refers to relief specifically granted from a criminal sentence.  Boards for 
Correction of Military/Naval Records 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 a discharge, 
which may be warranted on equity or relief from injustice grounds.  

	a.  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 on the basis of equity, injustice, or clemency 
grounds, Boards 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.  

	b.  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)	 AR20180014464

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