ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 September 2019 DOCKET NUMBER: AR20190009152 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), 29 May 2019 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 he was told that his discharge would be upgraded six months after his discharge date. 3. The applicant enlisted in the Regular Army on 31 January 1978. He completed training as a military policeman. 4. The applicant was counseled on 6 June 1978. The Army Europe (AE) Form 113-4 (Record of Informal Counseling Session) shows he was counseled for insubordination and was advised that no further displays of insubordination would be tolerated (i.e. failure to respond to his platoon leader's commands while undergoing CBR training). In the "Individual's" section on the AE Form 113-4, the applicant stated he did not feel he had done anything wrong except for a minor incident of horse play. He said he would watch his attitude. 5. The applicant was counseled on 18 July 1978. The AE Form 113-3 (Record of Formal Counseling) shows he was counseled for grabbing an M-16 Rifle and pointing it towards another Soldier while he was on duty; for allegedly having committed an act of insubordination toward a field grade officer while standing in line at the Pioneer Foodland in a state of intoxication on 17 July 1978; and for having been insubordinate toward his squad leader. The applicant acknowledge receipt on the AE Form 113-3 and he made an election not to submit a statement in his own behalf. 6. The applicant's company commander issued him a Letter of Reprimand (LOR) on 22 September 1978, for his gross negligence in the performance of his duties on 9 September 1978, in which he failed to properly clear his M-16 rifle and accidentally discharged a round in the vicinity of the clearing barrel at the North Atlantic Treaty Organization (NATO) Site 5. He was told that the mishap was irresponsible in that he had received sufficient training in the proper weapons procedures to preclude such an occurrence. The applicant's company commander told him it was his intent to impress upon him the significance of the careless act, of which he should be thankful he did not injure or kill one of his fellow Soldiers. He was told his irresponsibility and carelessness reflected discredit upon himself as a Soldier and upon the unit. 7. The applicant was issued his second LOR on 15 December 1978, for being unable to perform his duties after receiving sutures on 25 November 1978 for a facial injury he received while playing football, which resulted in his inability to wear his mask. He was scheduled to return to the dispensary to have the sutures removed on 30 November 1978 and he failed to do so even though he was free to go after hours. When his platoon sergeant awakened him for duty on 2 December 1978, he refused to go because he still had sutures in his face. He finally had the sutures removed on 4 December 1978. The applicant was told that his failure to have the sutures removed was interpreted as an indication that he deliberately intended not to pull his duty on 2 December 1978. He acknowledged receipt of the LOR and he made an election not to submit a statement in his own behalf. 8. The applicant's separation packet is not available for review. However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 5 February 1979, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31, under the Expeditious Discharge Program. His service was characterized as "Under Honorable Conditions." 9. 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 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, meritorious personal awards and insufficient evidence of mitigating circumstances for the misconduct. Neither did the Board find sufficient evidence of post-service honorable conduct that might have mitigated the misconduct that resulted in the discharge characterization. The Board agreed that the applicant’s discharge characterization is appropriate. 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. 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 that time, provided that members who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army because of a 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 Expeditious Discharge Program. Individuals discharged under the provisions of that paragraph may be awarded an honorable or general 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) AR20190009152 2 1