IN THE CASE OF: 

BOARD DATE:  7 September 2022

DOCKET NUMBER:  AR20220001944


APPLICANT’S REQUEST: Upgrade of his under honorable conditions (general) 
discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 293 (Application for the Review of Discharge)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 that discharge under honorable conditions is not recognized 
under qualified Veterans’ benefits.

3.  The applicant's service records show:

     a.  On 21 June 1974, at age 19, he enlisted in the Regular Army for a period of 3 
years. Upon completion of training, he was awarded military occupational specialty 
(MOS) 63H (Automotive Repairman).

     b.  On 27 July 1974, he accepted non-judicial punishment (NJP) under Article 15, of 
the Uniform Code of Military Justice (UCMJ) for violation of Article 113 (Misbehavior of 
Sentinel or Lookout) and his punishment included $150 fine for 2 months (second 
month suspended), 21 days restriction, and 21 days extra duty.

     c.  On 7 August 1975, he was advanced in rank to Private First Class (PFC)/E-3.

     d.  On 24 March 1976, he accepted NJP under Article 15, of the UCMJ for violation 
of Article 134 (Forgery) and his punishment included forfeiture of $175 for two months 
(one month suspended) and 30 days extra duty.
     e.  On 28 May 1976, he accepted NJP under Article 15, of the UCMJ for being 
disorderly on or about 21 May 1976. His punishment included reduction in rank to 
Private Two (PV2)/E-2, forfeiture of $75 ($25 suspended for 90 days), 14 days 
restriction, and 14 days extra duty.

     f.  On 9 September 1976, he accepted NJP under Article 15, of the UCMJ for failure 
to go at the time prescribed to his appointed place of duty. His punishment included 
7 days of extra duty.

     g.  On 29 September 1976, the unit commander notified the applicant he was 
initiating action to separate him under the provisions of Army Regulation 635-200 
(Personnel Separations), paragraph 5-37 (discharge for failure to demonstrate 
promotion potential), with recommendation that he be furnished a (general) discharge 
certificate.

          (1)  A Memorandum dated 30 September 1976, shows the applicant signed and 
acknowledged receipt of the separation notification; and

          (2)  Wrote, in effect, the following statement: "I will voluntarily accept a discharge 
from the Army. I know there has been "prejudice" towards me, by the 1st Sergeant, 
even when he was my Platoon Sergeant last year. I feel that this discharge is the only 
way for me to go. I don’t feel I can have a place in the Army now. I make this statement 
under my own free will."

     h.  Subsequently, the applicant’s unit commander-initiated action to separate him 
under the provisions of Army Regulation 635-200, paragraph 5-37 with a 
recommendation that he receive a general discharge.

     i.  On 7 October 1976, the separation authority approved the discharge 
recommendation and ordered the issuance of general discharge certificate.

     j.  On 19 October 1976, the applicant was discharged with a general, under 
honorable conditions. His DD Form 214 shows he completed 2 years, 3 months, and 18 
days of active service this period. He was awarded or authorized the National Defense 
Service Medal.

4.  Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) 
does not mandate relief, but rather provides standards and principles to guide Boards in 
application of their equitable relief authority to ensure each case will be assessed on its 
own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service 
member under the same circumstances today would reasonably be expected to receive 
a more favorable outcome.

5.  Published guidance to the BCM/NRs clearly indicates that the guidance is not 
intended to interfere or impede on the Board's statutory independence. The Board will 
determine the relative weight of the action that led to the discharge and whether it 
supports relief or not. In reaching its determination, the Board shall consider the 
applicant's petition, available records and/or submitted documents in support of the 
petition.  


BOARD DISCUSSION:

After reviewing the application, all supporting documents, and the evidence found within 
the military record, the Board found that relief was not warranted. The Board carefully 
considered the applicant's record of service, documents submitted in support of the 
petition and executed a comprehensive and standard review based on law, policy and 
regulation, and published Department of Defense guidance for liberal and clemency 
determinations requests for upgrade of his characterization of service.  Upon review of 
the applicant’s petition and available military records, the Board found insufficient 
evidence of in-service mitigation to overcome the misconduct.  He was discharged and 
was provided an under honorable conditions (General) characterization of service.  The 
Board agreed that the applicant's discharge characterization is warranted as he did not 
meet the standards of acceptable conduct and performance of duty for Army personnel 
to receive an Honorable discharge.





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 in effect at the time, set forth the basic authority for the 
separation of enlisted personnel. 
 
     a.  Paragraph 5-37, discharge for failure to demonstrate promotion potential, 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 regulation were issued either 
a general or honorable discharge.
 
     b.  An honorable discharge is a separation with honor. Issuance of an honorable 
discharge will be conditioned upon proper military behavior and proficient performance 
of duty during the member's current enlistment of current period of service with due 
consideration for the member's age, length of service, grade, and general aptitude.

3.  On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and 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.  

//NOTHING FOLLOWS//