ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  10 October 2019

	DOCKET NUMBER:  AR20190008443


APPLICANT REQUESTS:  The applicant requests his general under honorable 
conditions discharge be upgraded to an honorable discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Report of Transfer or Discharge)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10,          
U.S. Code, 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, in effect, he was discharged because the command felt he was 
unpromotable however, he has been a model citizen, married for over 40 years to the 
same woman, raised 3 children and 4 grandchildren, who would argue otherwise.  

3.  On 21 December 1971, at the age of 17 with a 10th grade education, the applicant 
enlisted in the Regular Army for a period of 3 years.  While in basic training he received 
conduct and efficiency ratings of excellent; however, during the advanced individual 
training (AIT) his ratings were unsatisfactory.  Upon completion of training he was 
awarded military occupational specialty (MOS) 11B (Infantryman) and on 6 June 1972 
he was assigned to Company C, 2nd Battalion, 15th Infantry, 3rd Division, Germany 
where he received unsatisfactory ratings for the duration of his assignment.

4.  The applicant accepted nonjudicial punishment, under the provisions of Article 15 of 
the Uniform Code of Military Justice (UCMJ) twice while in training on 21 March 1972, 
for absenting himself from his unit from 17 – 20 March 1972 and on 12 April 1972, for 
absenting himself from his unit from 3 – 11 April 1972.  Upon assignment to Germany 
he receive NJP on 27 July 1972, for sleeping on post duty on 22 July 1972

5.  Special Court-Martial Order Number 7 shows he was arraigned, and tried for the 
following nine charges and specifications. He plead not guilty to all charges and was 
found guilty for failure to obey an order and using disrespectful language towards a 
superior noncommissioned officer.  

6.  On 15 May 1973, the applicant was notified that his commander intended to initiate 
actions to separate him from the service under the provisions Army Regulation 635-206 
as changed by DA message, DTC 242110Z, Sep 71(Extension of Qualitative 
Management to Grades E-1 and E2), Separation for failure to demonstrate adequate 
potential for promotion advancement.

a.	The commander enclosed a detailed summary of events that shows on:

*	 1 January 1973 the applicant was eligible for promotion to E3 (Private First 
Class/PFC) there was a promotion freeze in effect
*	1 February 1973, the freeze was lifted and the commander denied promotion; 
although separation proceedings were not initiated at this time because the unit 
commander felt the applicant should be given further opportunity to rehabilitate
*	3 March 1973, promotion was denied by the commander a second time; pending 
time for the applicant to further rehabilitate
*	13 March 1973, the applicant was flagged for violations(s) of the UCMJ and 
remained flagged until 1 May 1973.  On 1 May 1973, he was eligible for 
promotion and denied a 3rd time and on 

b.	The applicant acknowledged receipt of proposed separation action and 
elected not to make a statement in his own behalf.  His Report of Medical Examination 
dated 2 May 1973 shows no mental deviation.  There is no record of a mental health 
examination in the appellant's files. 

     c.  The interim commander recommended approval and on 8 June 1973 the
separation authority recommended discharge on 8 June 1973 and directed the issuance 
of a General Discharge Certificate, however, the recommendation is void of signature

7.   On 18 June 1973 the applicant was discharged accordingly, his DD Form 214 
shows he completed 1 year 5 months and 17 days of net active service with 11 days of 
lost time, he was awarded or authorized the National Defense Service. 

8.  AR 635-200 Chapter 5 address provisions for personnel whose performance of duty, 
acceptability for the service, and fail to be advanced to the grade of E-3 after attaining 
the normal time in service and time in grade criterion for promotion to grade
E-3.  Normally, an honorable discharge will be awarded unless the Soldier's conduct 
clearly substantiates a general discharge. 


9.  The applicant requests and upgrade and states since his discharge he has been 
married over 40 years and a model citizen.  His record shows he enlisted at the age of 
17 with a 10th grade education and received a general discharge at the age of 19; 
within the first year of his enlistment he accepted NJP on 3 occasions and courts-martial 
proceedings found him guilty of 2 of 9 charges.   He completed 1 year 5 months and 17 
days of his 3 year contractual obligation.  In reaching its determination, the Board can 
consider the applicant's petition, his service record, and his statements in light of the 
published guidance on equity, injustice or clemency.

BOARD DISCUSSION:

The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records, regulatory requirements, and published DoD guidance for 
consideration of discharge upgrade requests.  The Board considered the applicant’s 
statement, his record of service, the frequency and nature of his misconduct and the 
reason for his separation.  The Board found insufficient evidence of in-service mitigation 
to overcome the misconduct and the applicant’s post-service evidence was insufficient 
to justify a clemency determination in light of his numerous incidents of misconduct 
during his military service.  The Board found that his general under honorable conditions 
discharge was fair and equitable.  Based on a preponderance of evidence, the Board 
determined that there was no error or injustice in the applicant’s discharge or character 
of service, or basis for clemency.









BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	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 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 (Personnel Separations – Enlisted Personnel), sets forth 
the basic authority for the separation of enlisted personnel.  It provides: 

	a.  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.  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. 

3.  Army Regulation 635-206 as changed by DA message, DTC 242110Z, Sep 
71(Extension of Qualitative Management to Grades E-1 and E2), Separation for failure 
to demonstrate adequate potential for promotion advancement.	

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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20190008443

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