ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  3 November 2020 DOCKET NUMBER:  AR20200002356 


APPLICANT REQUESTS:  The applicant submits three applications; one requesting an upgrade of his Under Honorable Conditions (General) discharge to Honorable and two applications requesting correction of his Date of Birth (DOB) on two of his DD Forms 214 (Certificate of Release or Discharge from Active Duty). 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.three DD Forms 149 (Application for Correction of Military Record)

.three DD Forms 214

.birth Certificate



FACTS: 







1.The applicant did not file within the three-year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.2.The applicant states he is requesting his discharge status be changed from UnderHonorable Conditions (General) to Honorable.  It should have been changed after sixmonths from being discharged.  He also requests the change of his birthdate on two ofhis DD Forms 214.3.A review of his record provides administrative error in properly annotating theapplicant's DOB, through no fault of the applicant.  Based on this the request regardinghis DOB will be will be administratively corrected.  The only issue before the purview ofthe Board is the applicant's request for an upgrade of his discharge.4.The applicant enlisted in the Active Army on 21 September 1976 for a period of 6years in the rank of Private (E1/PVT).  On 29 April 1979 he was honorably dischargedfor immediate reenlistment.

a.On 30 April 1979 he reenlisted for a period of 3 years in the rank of Specialist(E4/SPC).  On 4 September 1979 he was honorably discharged for immediate reenlistment.   

b.On 5 September 1979 he reenlisted for a period of 4 years in the rank of PrivateFirst Class (E3/PFC).  

5.On 15 January 1980 the applicant accepted nonjudicial punishment (NJP) for failingto go to his appointed place of duty on 13 December 1979.  He was reduced to PFC,had forfeiture of $100 for one month, and extra duty for 14 days.

6.The applicant received 16 counseling's between 30 January 1980 to 17 July 1981 fora multitude of reasons to include being late reporting to work, failing to make formation,and needing to improve his military performance.  Only 1 of the 16 counseling's referredto satisfactory performance (February 1981).

7.On 15 March 1981 he accepted NJP for failing to go to his appointed place of duty.He was punished to forfeit $100 for one month and extra duty for 14 days.

8.The applicant record contains a multitude of counseling's between February 1981and April 1981 for multiple issues to include needing improvement on his personalresponsibility, willingness to work, military bearing, indebtedness, and meetingperformance standards on two occasions.

9.The applicant received an Article 15 on 23 July 1981 for failing to go to his appointedplace of duty on 11 June 1981.  He was reduced to the grade of PFC, forfeited $148.00and placed in correctional custody for 7 days.

10.On 24 August 1981, he received a Bar to Enlistment/Reenlistment for displaying theinability to conduct himself to the minimum standards established by the military;inability to discern between right and wrong as evidenced by his punitive actions, andhis apathetic attitude towards the military.  The applicant acknowledged he understoodthe bar and elected to submit a statement on his behalf, however, the statement is notavailable in his record for review.

a.On 31 August 1981 the bar to reenlistment was approved.  On 3 September1981, the applicant was notified of the approved action. 

b.On 22 February 1982 his bar to reenlistment was reviewed and the commanderrecommended it remain in effect due to the continued display of an apathetic attitude and poor job performance.  

c.On 10 June 1982 the commander reviewed the bar to reenlistment a second timeand recommended it remain in effect due to do the applicant's lack of self-discipline and lack of promotion potential 

11.On 25 August 1982 he accepted NJP for a third time for being absent without leavefrom 10 August 1982 until 18 August 1982.  His punishment was forfeiture of $300,reduction to Private/E-2 and extra duty and forfeitures for 14 days.

12.On 1 September 1982, the applicant submitted a request for early separation underthe provisions of Army Regulation 635-200, paragraph 5-27 and stated he did not feelhe could overcome the bar to reenlistment.  He was a PV2/E2 with almost 6-years ofservice and would not be allowed to reenlist even if the bar were to be lifted prior to hisETS.

a.On 2 September 1982 his commander recommended approval of his requestand on 24 September 1982 the appropriate authority approved his separation and directed he be issued a Under Honorable Conditions (general) characterization of service.  

b.On 6 October the applicant was discharged.  He completed 2 years, 6 monthsand 7 days of his contractual obligation as it pertains to his reenlistment executed on 9 September 1979. 

c.Army Regulation 601-280 states that while the fact than an individual may haveserved honorably for a number of years is considered in the evaluation of his service, it does not prohibit the initiation of bar to reenlistment procedures, if such action is otherwise appropriate.  Soldiers against whom bar to reenlistment proceedings are initiated often have records which disclose indiscipline and/or infractions related to untrainability, unsuitability, failure to adapt and/or inability to handle family relations. 

d.Army Regulation 635-200, paragraph 5-27, stated enlisted personnel may bedischarged prior to the expiration of their term of service when they have received a bar to reenlistment and perceive that they will be unable to overcome a locally imposed bar to reenlistment may apply for immediate discharge upon completion of the review procedure.   

13.In regards to the applicant's contention that his characterization of service shouldhave been updated 6-months after his discharge.  The U.S. Army does not have, norhas it ever had, a policy to automatically upgrade discharges.  Each case is decided onits own merits when an applicant submits an application to either the Army DischargeReview Board or the ABCMR requesting change in discharge.  Changes may bewarranted if the ABCMR determines that the characterization of service or the reasonfor discharge or both were improper or inequitable.  The Defense Discharge ReviewStandards specifically state that no factors should be established that require automaticchange or denial of a change in discharge

14.In reaching its determination, the Board can consider the applicant's petition, hisservice record, and post-service accomplishments in light of the published Departmentof Defense guidance on equity, injustice, or clemency.

BOARD DISCUSSION: 





1.In consideration of the Administrative Notes (below the signature) and after review ofthe application and all evidence, the Board determined, based on a preponderance ofeevidence, that there is sufficient evidence to grant partial relief.2.The Board agreed with the correction in Administrative Notes.3.Regarding the applicant’s request to upgrade his discharge to honorable, the Boardfound insufficient evidence to grant this portion of the applicant’s request.  The boardapplied Office of the Secretary of Defense standards of liberal consideration andclemency to the complete evidentiary record, including the applicant’s statement and didnot find any evidence of error, injustice, or inequity.  Regarding a clemencydetermination, the applicant had no valorous awards, no wartime service and insufficientevidence of mitigating circumstances for the misconduct.  Neither did the Board findsufficient evidence of post-service honorable conduct or letters of reference that mighthave mitigated the discharge characterization or supported a clemency determination.The Board agreed that the applicant’s discharge characterization is appropriate.


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : GRANT FULL RELIEF 

:XX :XX GRANT PARTIAL RELIEF 

: : GRANT FORMAL HEARING 

: :XX : : : : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

1.In consideration of the Administrative Notes annotated by the Analyst of Record(below the signature), the Board determined the evidence presented is sufficient togrant partial relief.

2.The Board recommends approving the applicant’s request for DOB corrections perAdministrative Notes.

3.The Board recommends denying the applicant’s request to upgrade his character ofservice to honorable.


X CHAIRPERSON

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):  

1.A review of his records indicates his DD Form 4 dated 30 April 1979, and his DDForm 214 effective 29 April 1979 record the applicant’s correct DOB in accordance withhis birth certificate.

2.However, review of his records revealed administrative error in annotating his Dateof Birth on his DD Form 4 dated 5 September 1979 and his DD Forms 214 withseparation end dates 4 September 1979 and 6 October 1982.

3.As a result, correct the DD Forms 214, dated 4 September 1979 and 6 October 1982to show the DOB shown on his birth certificate.


REFERENCES: 
1.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords 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 oflimitations if the ABCMR determines it would be in the interest of justice to do so.

2.Army Regulation 601-280 (Army Reenlistment Program) states While the fact thanan individual may have served honorably for a number of years is considered in theevaluation of his service, it does not prohibit the initiation of bar to reenlistment
procedures, if such action is otherwise appropriate.  Soldiers against whom bar to reenlistment proceedings are initiated often have records which disclose the recurrence of one or a combination of the following: 

.Late to formations, details, or assigned duties

.AWOL for 1- to 24-hour periods

.Losses of clothing and equipment.

.Substandard personal appearance

.Substandard personal hygiene

.Continuous indebtedness; reluctance to repay; or late payments

.Recurrent Article 15 punishments

.Frequent traffic violations

."Rides" sick call without medical justification

.Late returning from pass or leave

.Cannot follow orders; shirks; takes too much time; is recalcitrant

.Cannot train for a job; apathetic; disinterested

.Cannot adapt to military life; uncooperative

.Involved in frequent difficulties with fellow soldiers

.Failure to manage personal, marital and/or family affairs. This includes failure torespond to duty requirements because of parenthood

.or custody of dependents (minor or adult)

.Causes trouble in the civilian community

.Involved in immortal acts.



3.Army Regulation 635-200 Personnel Separations-Enlisted Personnel, in effect at thetime, sets forth the basic authority for separation of enlisted personnel. It provides;

a.An honorable discharge is a separation with honor. Issuance of an honorabledischarge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude.  Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate.  

(1)Where there have been infractions of discipline, the extent thereof should beconsidered, as well as the seriousness of the offense(s). A member will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by courts-martial or actions under Article 15 of the UCMJ.  Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge.   

(2)It is pattern of behavior and not the isolated instance which should beconsidered the governing factor in determination of character of service. When there is 
doubt as to whether an honorable or general discharge should be furnished, the doubt should be resolved in favor of the member. 
 
 b.  A general discharge is a separation from the Army under honorable conditions.  It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  The recipient of a general discharge is normally a member whose military record and performance is satisfactory.  The member may have had frequent non-judicial punishments but not for serious infractions.  He may be a troublemaker, but his conduct is not so bad as to require discharge for cause or a discharge under less than honorable conditions. When a member's service is characterized as general, except when discharged by reason of unsuitability, misconduct, homosexuality, or security, the specific basis for such separation will be included in the member's military personnel record. 
 
 c.  Paragraph 5-27, stated enlisted personnel may be discharged prior to the expiration of their term of service when they have received a bar to reenlistment and perceive that they will be unable to overcome a locally imposed bar to reenlistment may apply for immediate discharge upon completion of the review procedure.   
 
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 on the basis of 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.