ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  22 April 2019

	DOCKET NUMBER:  AR20190000135


APPLICANT REQUESTS:  The applicant requests an upgrade of his general discharge 
to a fully honorable discharge.  He also requests an opportunity to appear at the Board 
in Philadelphia, PA.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 293 (Application for Review of Discharge)
*	Receipt for his Military Protective Mask

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.  In regards to the applicant's request for a personal appearance.  There are no 
provisions to support the applicant’s request for a personal appearance before an Army 
Discharge Review Boards (ADRB) traveling panel closest to Philadelphia, because he 
petitioned the ADRB for a review of his discharge after the ADRB's 15-year statute of 
limitations.  Therefore, his case is being considered by the Army Board for Correction of 
Military Records (ABCMR).  In regards to the applicant's request for a personal 
appearance, Army Regulation 15-185, states an applicant is not entitled to a hearing 
before the Board; however, the request for a hearing may be authorized by a panel of 
the Board or by the Director of ABCMR. 
 
3.  The applicant states his discharge was inequitable because it was based on one 
isolated incident during his period of service with no other adverse actions.  Additionally, 
he states he was told his discharge would be up graded after 6 months, but it was never 
changed.

4.  On 9 October 1974, the applicant enlisted in the Regular Army for 2 years.  He held 
military occupational specialty 11B (Light Weapons Infantryman). 
5.  On 24 November 1974, the applicant accepted nonjudicial punishment (NJP) under 
the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent 
without leave from his basic training unit at Fort Dix, NJ, from 23 to 24 November 1974.  
His punishment consisted of a forfeiture of pay, restriction, and extra duty.

6.  The applicant served in Germany from 5 March 1975 to 28 September 1976.

7.  On 1 July 1975, he was counseled and considered for NJP for breaching the peace, 
by being drunk and disorderly in a public place, in Schweinfurt, Germany, on the same 
date.

8.  On 16 July 1975, a bar to reenlistment was imposed against the applicant for 
unsatisfactory performance and conduct, his appearance, and his attitude.  This 
document shows he received NJP for a breach of the peace incident; however, this 
record of punishment is not in the available evidence.  

9.  On 2 April 1976, the applicant accepted NJP under the provisions of Article 15, 
UCMJ, for failure to go to his appointed place of duty at the time prescribed (guard 
mount), on 22 March 1976.  His punishment included reduction to pay grade E-1, a 
forfeiture of pay, restriction, and extra duty.

10.  Between April and May 1976, he was counseled on five occasions for the following 
reasons:

*	being disrespectful toward a noncommissioned officer (twice)
*	an unsatisfactory haircut and uniform
*	not having his identification card in his possession 
*	being drunk on guard duty
*	a poor attitude, while in the field
*	a lack of motivation, a lack of self-discipline, apathy, and failure to show 
promotion potential 

11.  On 26 May 1976, the applicant underwent a Mental Status Evaluation, it shows he 
met the retention standards prescribed in chapter 3, Army Regulation (AR) 40-501 
(Standards of Medical Fitness).

12.  On 17 June 1976, the applicant’s immediate commander notified the applicant of 
his intent to separate him from the Army under the provisions of AR 635-200 (Personnel 
Separations – Enlisted Personnel), paragraph 5-37 (Expeditious Discharge Program 
(EDP)) with a general discharge.  He was advised of his rights and the commander 
cited the following reasons as the bases for the recommendation:  he had a poor 
attitude, a lack of both motivation and self-discipline, an apathetic attitude, and he failed 
to show promotion potential. 

      a.  On the same date, the applicant acknowledged notification of his proposed 
discharge from the Army and he voluntarily consented to the discharge.  He 
acknowledged he understood the procedures and rights that were available to him and 
he had been provided the opportunity to consult counsel.  He also acknowledged that 
he understood the possible effects of a general discharge.  He declined to submit 
statements in his own behalf.

      b.  Subsequent to this acknowledgement, the immediate commander initiated 
separation action.   The separation authority approved the applicant's by reason of 
failure to meet acceptable standards for continued military service and directed that he 
receive a General Discharge Certificate.  

13.  On 12 July 1976, the applicant was discharged accordingly.  His DD Form 214 
shows he completed 1 year, 9 months, and 4 days of net active service.  His DD Form 
214 also shows he was awarded or authorized the National Defense Service Medal and 
Expert Marksmanship Qualification Badge Rifle (M-16). 

14.  The applicant states he was told his discharge would be upgraded 6 months after 
separation.  However, former Soldiers must apply for discharge upgrades, and the 
Board decides each case individually on its own merits.  The Army has never had a 
policy whereby an applicant's character of service is upgraded automatically.  

15.  He also contends that he was discharged after one isolated incident; however, his 
service record shows he committed multiple offenses and he was discharged, due to 
failure to meet acceptable standards for continued military service with a general 
discharge.  

16.  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 
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 applicant claims to have been 
told that his discharge would automatically be upgraded after months, but provides no 
evidence of this, and such a practice is not in accordance with Army policy.  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.

								5/28/2019




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.  AR 15-185, states an applicant is not entitled to a hearing before the Board; 
however, the request for a hearing may be authorized by a panel of the Board or by the 
Director of ABCMR.  

3.  AR 635-200, in effect at the time, set forth the basic authority for the separation of 
enlisted personnel.  

     a.  Chapter 5 provides that members who had completed at least 6 months but less 
than 36 months of continuous active service on their first enlistment and who had 
demonstrated that they could not or would not meet acceptable standards required of 
enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, 
inability to adapt socially or emotionally, or failure to demonstrate promotion potential 
may be discharged under the EDP.  It provided for the expeditious elimination of 
substandard, nonproductive Soldiers before board or punitive action became necessary.  
No member would be discharged under this program unless he/she voluntarily 
consented to the proposed discharge.  Issuance of an Honorable Discharge Certificate 
was predicated upon proper military behavior and proficient performance of duty during 
the member's current enlistment with due consideration for the member's age, length of 
service, grade, and general aptitude.  

     b.  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. 

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.  

	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 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.  

	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)	 AR20190000135

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