ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  9 August 2019

	DOCKET NUMBER:  AR20190006988


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), dated 29 April 2019
*	DD Form 214 (Report of Separation from Active Duty), for the period ending 
8 August 1979
*	Department of Veterans Affairs (VA) Decision Letter, dated 9 April 2009

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 in a bad accident while on duty and his doctor said he 
would be out of the Army in a few weeks.  However, after a year and a half he was still 
in.  He was moved to two different platoons, the second platoon sergeant did not like 
him because of his physical profile.  He would have stayed in the Army if he hadn’t had 
the accident.  He is currently trying to get health insurance through United Services 
Automobile Association (USAA) and was told he had to have an honorable discharge.

3.  The applicant enlisted in the Regular Army on 23 August 1977.

4.  A DA Form 4187 (Personnel Action), dated 16 May 1978, indicates the applicant was 
involved in a motor vehicle accident on or about 11 May 1978.  He was placed on three 
physical profiles during the period of 31 May through 24 November 1978.  

5.  The applicant's record contains no other documentation that addresses the severity 
of his injuries, any medical limitations imposed by those injuries, or his ability to perform 
his required duties in accordance with his grade and military occupational specialty.

6.  The applicant accepted non-judicial punishment (NJP) on 28 September 1978, under 
the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for behaving 
with disrespect towards his superior commissioned officer, on or about 23 August 1978.

7.  A review of the applicant’s record failed to reveal any additional records of NJP.

8.  The applicant's immediate commander notified him on 18 July 1979 that he was 
initiating actions to separate him from service under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31 (Expeditious 
Discharge Program (EDP)), with an under honorable conditions discharge.  

	a.  As reasons for the proposed separation action, the applicant's commander cited 
the applicant’s failure to adapt to military life or to meet acceptable levels of conduct, 
and his lack of potential for advancement in the Army.

	b.  The applicant's record contains no evidence of adverse counseling or records of 
adverse action taken against the applicant, aside from the NJP addressed above and a 
DA Form 4187, in which his chain of command denied his advancement to the 
rank/grade of private first class (PFC)/E-3 due to substandard performance.

9.  The applicant acknowledged receipt of the proposed separation notification on 
19 July 1979.  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.

10.  The separation authority approved the separation action on 3 August 1979 and 
directed the issuance of a DD Form 257A (General Discharge Certificate).

11.  The applicant was discharged on 8 August 1979.  His DD Form 214 shows he was 
credited with 1 year, 11 months and 16 days of net active service.  His service was 
characterized as under honorable conditions.

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

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined that there is 
sufficient 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 found that the punishment and characterization 
were too harsh for the minor misconduct, especially given that the applicant had been 
physically unable to perform due to a vehicle accident.  Therefore, the Board found 
sufficient evidence to upgrade the discharge.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:X	:X	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a 
recommendation for relief.  As a result, the Board recommends that all Department of 
the Army records of the individual concerned be corrected by amending the applicant’s 
discharge characterization on his DD Form 214 dated 8 August 1979 to “Honorable.”


	  
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 5-31 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)	 AR20190006988

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