ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  27 June 2019

	DOCKET NUMBER:  AR20190003910


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), with personal statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 14 September 1979
* Illinois State Police Records Check
* two letters of support

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 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 believes his discharge was based on an injustice concocted by his acting noncommissioned officer (NCO).  

   a.  Prior to service his recruiter told him that his flat feet would not be a problem with his entry on active duty. 
   
   b.  The alleged misconduct was incorrect and unfair.  The trouble arose from being charged with sleeping on watch, a fact he does not deny but states it was from having been up for 24 hours straight.  He was told his discharge would be upgraded a year after his separation.  

	c.  Post service he worked as a mover for 20 years and learned to build fences.  During school he received a leadership award from the student government, was president of the Student Veterans Association, and an officer in "We Are," a domestic abuse support group.  

3.  With an eighth grade education, the applicant enlisted in the Regular Army on 26 February 1979.

4.  The applicant was seen by podiatry on 30 July 1979 for recurrent pain in the medial arch.  He was prescribed arch supports and was diagnosed with pes planus [flat feet].

5.  The applicant was counseled on 30 July 1979 for completing only half of the physical fitness training run before stopping and walking back to the billets.  He was stopped by an NCO and was told to walk the remainder of the course but turned away and ignored orders to stop.

6.  The applicant received nonjudicial punishment on 24 August 1979, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being derelict in the performance of his duties, on or about 3 August 1979.

7.  The applicant's commander notified the applicant on 24 August 1979 that he was initiating actions to separate him from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), based on his inability to function within the regulations and his inability to properly perform his prescribed duties.  The applicant acknowledged receipt of the notification on the same day. 

8.  The applicant's commander formally recommended his separation from service on 24 August 1979, under the provisions of Army Regulation 635-200, paragraph 5-31, based on his inability to function within the regulations of the military and inability to perform prescribed duties.

9.  The separation authority approved the applicant's request for discharge on 24 August 1979, under the provisions of Army Regulation 635-200, paragraph 5-31, and directed the applicant receive a DD Form 257A (General Discharge Certificate).

10.  The applicant was discharged on 14 September 1979.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31.  His DD Form 214 shows he was discharged in the rank/grade of private/E-2 and his service was characterized as under honorable conditions (general).  

11.  The Illinois State Police Records Check shows arrests for:

* armed robbery (1987)
* two counts of escape/no return from furlough (1988)
* possession of cannabis (1992)
* driving on a revoked or suspended license (1999)
* obstructing justice (2000)
* Attempt /Felony class X (2002)
12.  The letters of support, from members of Fox Valley Technical College staff, describe the applicant as a hard working individual, always ready to volunteer when needed.  He relates easily and with integrity to all he encounters.  He takes his roles and responsibilities very seriously and has been honored for his diligence and devotion.

13.  The Board may consider the applicant's medical condition, lower educational level during his period of service, successful college efforts for consideration granting relief in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD policy for consideration of discharge upgrade requests.  The Board discussed the circumstances the led to his separation, the applicant’s statement and letters of support, his education level and whether to apply clemency.  The Board found there was insufficient evidence to mitigate the misconduct and reason for his separation and determined that the character of service he received was neither an error or unjust. 

2.  After reviewing the application and all supporting documents, the Board determined 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 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

3.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Paragraph 3-7a provides that 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 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

   c.  Paragraph 5-31 of that regulation, in effect at the time, provided for the separation of personnel because of unsatisfactory performance or conduct (or both).  This policy applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life, or because he lacked the aptitude, ability, motivation or self-discipline for military service, or that he had demonstrated characteristics not compatible with satisfactory continued service.
   
4.  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.


ABCMR Record of Proceedings (cont)	 AR20190003910
0

4


1