IN THE CASE OF: 

		BOARD DATE: 11 August 2023

		DOCKET NUMBER: AR20230004844


APPLICANT REQUESTS: upgrade of his general, under honorable conditions 
discharge to honorable.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record), 27 February 2023.


FACTS:

1.  The applicant did not file within the 3-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 feels his discharge should be upgraded after 
attending a Veterans group meeting. e had less than 4 months remaining on his military 
service obligation. He was late for morning formation by 5 minutes. Then his first 
sergeant and company commander gave him an option to take nonjudicial punishment 
or a court-martial for being late. He elected the court-martial where it was decided the 
punishment was excessive for a Soldier with no previous disciplinary action. His 
company commander did not like the outcome.

3.  The applicant provided a DD Form 149 application outlined above.

4.  A review of the applicant's available records shows:

	a.  On 15 June 1973, he enlisted in the Regular Army for a period of 3 years at 
age 18. He completed Basic Combat Training, he completed Advanced Individual 
Training, and he was awarded military occupational specialty (MOS) 13A (Field Artillery 
Basic).

	b.  On 31 July 1973, while assigned to Company A, 3d Battalion, Basic Combat 
Training Brigade, Fort Dix, he accepted nonjudicial punishment under the provisions of 
Article 15 of the Uniform Code of Military Justice for striking Private PN___, a member 
of his unit. His punishment consisted of forfeiture of $153.00 a month for 2 months, and 
confinement in correctional custody for 30 days. He did not appeal this punishment.

	c.  On 1 May 1974, he was awarded MOS 13B (Cannoneer) and on 19 June 1974, 
he was promoted to specialist 4/E-4.

	d.  His DA Forms 2166 (Enlisted Efficiency Report), show:

*	On 28 January 1975, he was rated outstanding and excellent in performance 
of duty as the Assistant Battery Clerk, by his Battalion First Sergeant and 
Battery Commander
*	On 21 February 1975, he was rated outstanding and excellent in performance 
of duty as the Assistant Battery Clerk, by his Battalion First Sergeant and 
Battery Commander
*	On 27 August 1975, he was rated outstanding and excellent in performance 
of duty as the Assistant Battery Clerk, by his Battalion First Sergeant and 
Battery Commander

	e.  His DA Forms 2166 (Enlisted Evaluation Report) shows:

*	On 23 January 1975, he was rated as exceeds or meets duty performance 
traits as a cannoneer 
*	On 9 June 1976, he was rated as exceeds or meets duty performance traits 
as a cannoneer with a notation that his attitude towards the Army set a bad 
example for himself and members of the battery

	f.  Special Court-Martial Orders Number 8, issued by Headquarters (HQ), 
9th Infantry Division Artillery, Fort Lewis, 26 April 1976, shows he was found guilty of 
failing to go to his appointed place of duty at 0615 hours, 24 February 1976 at 
Battery C, 1st Battalion, 84th Field Artillery, Fort Lewis. He was not sentenced to any 
punishment. The sentence was adjudged on 7 April 1976. 

	g.  On 26 April 1976, the Commander, HQ, 9th ID, Artillery, Fort Lewis, approved the 
sentence of the Special Court-Martial Convening Authority.

	h.  On 7 May 1976, the Commander, 1st Battalion recommended he be barred from 
reenlistment. In his recommendation, his commander noted his poor attitude and nine 
instances of separate counseling by the chain of command for disrespect and failure to 
follow instructions. His commander further noted one instance of Article 86 for failure to 
repair on 6 April 1976 (Special Court-Martial) for which no punishment was imposed.

	i.  In an undated response to his commander's recommendation for bar to 
reenlistment, he wrote, in part, he should not be barred for reenlistment because he did 
not fall into any of the categories outlined in Army Regulation 601-280 (Personnel 
Procurement Army Reenlistment Program). He should have had a number of nonjudicial 
punishments and court-marital convictions and punishments but did not. He has not 
denied his attitude has deteriorated some, but the majority of this was due to his 
commander telling him there was no chance of him being promoted because he 
expressed his desire not to reenlist. His special court-martial conviction was a form of 
harassment in which he received no punishment.

	j.  On 20 May 1976, the Commanding Officer, 9th ID and Fort Lewis, approved his 
bar to reenlistment.

	k.  On 14 June 1976, he was relieved from active duty and transferred to control of 
the U.S. Army Reserve Control Group (Reinforcement). His DD Form 214 (Report of 
Separation from Active Duty) shows in:

		(1)  Block 6a (Grade, Rate, or Rank) and Block 6b (Pay Grade)   Specialist/E-4;

		(2)  Block 9a (Type of Separation)   Relief from Active Duty;

		(3)  Block 9C (Authority and Reason)   Army Regulation 635-200, Chapter 2, 
Separation Program Designator LBK;

		(4)  Block 9e (Character of Service)   general, under honorable conditions;

		(5)  Block 10 (Reenlistment Code)   RE-1; and

		(6)  Block 18 (Record of Service)   3 years of net active service this period.

	l.  On 14 June 1979, he was discharged from the U.S. Army Reserve (Standby 
Reserve) with a characterization of general, under honorable conditions.

	m.  There is no evidence indicating he applied to the Army Discharge Review Board 
for an upgrade of his discharge within that board's 15-year statute of limitations.

4.  In reaching its determination, the Board can consider the applicant s petition and his 
service record in accordance with the published equity, injustice, or clemency 
determination guidance.

?
BOARD DISCUSSION:

After reviewing the application, all supporting documents and the evidence found within 
the military record, the Board determined that relief was not warranted. The Board 
carefully considered the applicant s request, supporting documents, evidence in the 
records and published DoD guidance for consideration of discharge upgrade requests.  
The Board considered the frequency and nature of the misconduct and the reason for 
separation. The Board found insufficient evidence of in-service mitigating factors to 
overcome the misconduct and weigh in favor of a clemency determination. Based on a 
preponderance of evidence available for review, the Board determined that the 
character of service the applicant received upon separation was not in error or unjust.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:xx	:xx	:xx	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined 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, U.S. Code, section 1552(b), provides that applications for correction of 
military records must be filed within 3 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 3-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), in effect at 
the time, provided the authority for separation of enlisted personnel upon expiration 
term of service, prior to expiration term of service, retirement by reason of length of 
service, and issuance of discharge certificates.

	a.  Paragraph 1-9. Honorable Discharge.

		(1)  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. 
Where a member has served faithfully and performed to the best of his ability and has 
been cooperative and conscientious in doing his assigned tasks, he may be furnished 
an honorable discharge. When there have been infractions of discipline, the extent 
thereof should be considered, as well as the seriousness of the offences. A member will 
not necessarily be denied an honorable discharge solely be reasons of a specific 
number of convictions by courts-martial or actions under Article 15 of the Uniform Code 
of Military Justice. It is the pattern of behavior and not the isolated instance which 
should be considered the governing factor in determination of character of service to be 
awarded.

		(2)  A member's service will be characterized as honorable by the commanding 
officer authorized to take such action or higher authority when a member is eligible for 
or subject to separation and it has been determined that he merits an honorable 
discharge under the following standards:

*	has conduct ratings of at least "good."
*	has efficiency ratings of at least "fair."
*	has not been convicted of a general court-marital
*	has not been convicted more than once by special court-martial

		(3)  Notwithstanding the foregoing criteria, an honorable discharge may be 
furnished when disqualifying entries in the individual's military record are outweighed by 
subsequent honest and faithful service over a greater period of time during the current 
term of service. Careful consideration will be given to the nature al the offence and 
sentence adjudged in the court-marital and when, in the opinion of the office affecting 
discharge, these have not been too serious and severe, and the remainder of the 
service in the enlistment has been such that an honorable discharge would have been 
granted had the conviction not occurred, an honorable discharge may, be awarded. 
When there is doubt as to whether an honorable or general discharge should be 
furnished, the doubt should be resolved in favor of the Individual. 

	b.  General Discharge.

		(1)  A general discharge is a separation from the Army under honorable 
conditions of an individual whose military record is not sufficiently meritorious to warrant 
an honorable discharge. When a member's service is characterized as general, except 
when discharged by reason of misconduct, unfitness, unsuitability, or security, the 
specific basis for such separation will be included in the individual's military personnel 
record.

		(2)  A general discharge may be issued if an individual has been convicted of an 
offense by general court-martial or has been convicted by more than one special court-
martial in the current enlistment period or obligated service or any extension thereof. 
The decision is discretionary; if there is evidence that the individual's military behavior 
has been proper over a reasonable period of time subsequent to the conviction(s), he 
may be considered for an honorable discharge. 

		(3)  A member's service may be characterized as general by the commanding 
officer au thorized to take such action or higher au thority when the member is eligible 
for or is subject to separation and it has been deter mined, under the prescribed 
standards, that separation is warranted. 

	c.  Chapter 2 provided guidance for discharge of enlisted personnel by reason of 
expiration of term of service. 

4.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 
currently in effect, sets policies, standards, and procedures to ensure the readiness and 
competency of the force while providing for the orderly administrative separation of 
Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards 
of conduct and performance.

	a.  Chapter 4. Separation for Expiration of Service Obligation. A Soldier will be 
separated upon expiration or fulfillment of service obligation.

	b.  paragraph 4-5. A Soldier being separated upon expiration of enlistment or 
fulfillment of service obligation will be awarded a character of service of honorable 
unless the Soldier is in entry-level status and service is uncharacterized.

5.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities and the 
reasons for the separation of members from active military service and the SPD codes 
to be used. The regulation in effect at the time shows that the SPD code of LBK, as 
shown on the applicant's DD Form 214, is appropriate when the narrative reason for 
separation is completion of required service (expiration of term of service (ETS)) and 
the authority for discharge is Army Regulation 635-200, chapter 2.  Review of historical 
SPD/RE code cross-reference tables shows SPD code LBK applied to both voluntary 
and involuntary separations under Army Regulation 635-200, chapter 2, with voluntary 
separations receiving an RE code of 1.

6.  Army Regulation 601-280 (Personnel Procurement Army Reenlistment Program), in 
effect at the time, provided assistance to commanders and reenlistment personnel in 
conducting the Army Reenlistment Program. It listed the eligibility criteria and options 
then available and covered uniform procedures for immediate reenlistment of persons 
serving in the Active Army.

	a.  Paragraph 1-31 provided the procedures for the denial of reenlistment to persons 
whose reentry into or continued service with the Army was deemed to no be in the best 
interest of the military service.

	b.  Paragraph 1-35i provided the DD Form 214 of otherwise qualified persons who 
are separated with a bar to reenlistment in effect, are coded RE-3 even though an 
honorable discharge may be issued.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20230004844


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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