ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 20 March 2019 DOCKET NUMBER: AR20160015393 COUNSEL REQUESTS: applicant’s discharge under the Expeditious Discharge Program (EDP) be changed to a medical discharge. COUNSEL'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 12-page brief * Copies of applicant personnel and medical records * Personal statement from applicant * Excerpt of Army Regulation 635-300, effective June 1975 * Congressional Report * Government Accounting Office (GAO) Report FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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. In a 12-page brief counsel cites numerous court decisions and states: a. The applicant is a veteran of the United States Army. He was separated from the Army in 1975 with a General (Under Honorable Conditions) characterization of service pursuant to the EDP while studying to be a Radio, Relay, and Carrier attendant at the U.S Army Signaling Center and Fort Gordon. As explained below, the separation was illegal because it violated Army regulations and denied him due process. The assignment of a General discharge was also unjust. Accordingly, applicant is entitled to an honorable characterization of service as a remedy. b. The applicant enlisted in the Army on 31 May 1974. He performed satisfactorily and was promoted to private E-2. He was designated an expert rifle marksman. However, during the interim between basic training and advanced school, he had a three-day unauthorized absence. He received non-judicial punishment (NJP) for the offense with only minor punishments assigned. The applicant entered school to become a Radio, Relay and Carrier Attendant at Fort Gordon in August, 1974. There is nothing in the service record indicating the applicant’s performance in school was anything less than satisfactory. On 22 October 1974, the applicant received a second NJP for possession of marijuana. The applicant was ordered reduced in grade and forfeited some pay. He was also given a bar to re-enlistment. Notwithstanding these actions, he was subsequently promoted to private E-2. c. On 4 February 1975, the applicant was selected for separation under the EDP, which was then a pilot program to separate marginal performers being implemented at Fort Gordon. The applicant received a notification letter that cited only Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), 5-37 as the authority. The letter stated the applicant was recommended for separation based upon "an inability to cope with the military environment, and your continued lack of response to counselling sessions by your superiors" thus indicating "a complete lack of potential for productive military service." The notice stated the applicant was being recommended for a general discharge and had a right to decline the discharge. The letter also stated if "subsequent conduct" indicated separation was warranted, such proceedings might be pursued. On the same date, the applicant met with an Army lawyer who informed him either he took the expedited general discharge or he would be kicked out of the service with a less favorable characterization. The applicant did not want to leave military service, and his desire to continue in the Army is corroborated by a service medical record. d. The applicant's separation was processed up through the chain of command and it is in this correspondence that reference to the EPD as authority for the separation first appears. The applicant was referred for a psychiatric examination which found he was suffering from "some depression," but dismissed the symptoms as situational. The applicant also received a separation medical examination which reported his medical problems were "too numerous to list" but included frequent severe headaches, dizziness and fainting spells, depression, and black-out spells. Applicant was separated from service on 5 March 1975. e. Counsel argues the EPD was created because of performance problems among enlistees in the all-volunteer armed forces following at end of the Vietnam War. In November 1973, Congress noted the Navy had a program to separate poor performers for the convenience of the government and recommended that similar programs be established in the other services. The report noted under the Navy program, the poor performers were given honorable discharges. The EPD was created to address the Congressional concern, and the Army implemented it as a pilot program in Europe in 1973. In November 1974, the pilot program was expanded to three additional commands, and a quota was established. The program was not implemented Army- wide until June 1975. f. The Army has not retained the instructions it issued in November 1974, relative to the pilot program. However, the June 1975 regulations are available from the Pentagon Library's Internet site. Those regulations required that acceptance of the program be voluntary. They also prohibited use of the program as a substitute for disciplinary administrative separations or medical separations. The regulation also stated it was contrary to the intent of the regulation to use the EPD to force a discharge upon a member who declined one. Counsel goes on to explain why the three year statute of limitation should waived. g. Counsel contends the following error or injustice occurred. The applicant's 4 February 1975 notification letter cited paragraph 5-37 Army Regulation 635-200 as the authority for his separation. This same citation appears on the applicant's DD Form 214 (Report of Separation from Active Duty). However, the official regulation in effect at that time explicitly limited its scope to personnel who failed to be promoted on schedule. The applicant did not qualify for separation under the cited regulation because he was promoted on time. The regulation simply did not apply. The actual authority for applicant's separation was the not Army Regulation 635-200, chapter 5-37 as it existed in February 1975, but rather the EDP pilot program instruction issued in November 1974 that the Army is now unable to produce. To the extent the pilot program instruction directed the use of paragraph 5-37 to separate the applicant as suggested by his DD Form 214, then the instruction was contrary to the officially promulgated regulation. As a legal matter, it could not be the basis for separation. He cites Shepherd v. Merit Systems Protection Board, 652 F.2d 1040 (D.C. Cir. 1981); however, he does provide the actual case. Accordingly, he feels the Board should conclude an error or injustice exists because the Army erroneously applied Army Regulation 635-200, chapter 5-37 to separate the applicant. h. The failure of the Army to preserve the November 1974 EDP pilot project instruction provides independent grounds for voiding the assignment of the general discharge to the applicant. Enlisted service members enjoy statutory protection against early separation unless proper procedures are observed. Due process requirements apply to an early separation with a general discharge. He cites Holley v. United States, 124 F .3d 1462 (Fed. Cir. 1997); however, he does not provide the actual case. Due process for general discharges is satisfied by a pre-separation notice procedure followed by an opportunity for a post-separation hearing before the various discharge review boards and boards of correction. He cites Cleveland Board of Education v. Loudermill, 4 70 U.S. 532 (l 996) (Explaining post-deprivation due process requirements). He does not provide the actual case. If the Army does not retain the documents needed for the Board to determine the validity of separation, then post- separation hearing is rendered meaningless. An applicant cannot determine if his separation complied with the law if the relevant legal documents are destroyed by the Army. i. The Army has an obligation to retain documents which serve as authority for separations for as long as review may be sought before the Board. As a practical matter they must be preserved indefinitely. The Board should conclude the Army’s failure to preserve the EDP instruction constitutes an error or injustice warranting relief. The EDP was established as purely voluntary separation on the part of the servicemember. The voluntariness of the separation was key to its utility. As noted in the Congressional report, “proper ad reasonable review procedures must be established, but since the program involves voluntary separations, complex review procedures would appear unnecessary. j. It is well established in order to be voluntary, an action must be informed, free from fraud or misconduct, and made after due consideration. The voluntariness question turns on such as whether the individual re3cived correct information about what would happen in response to choice and was the choice free from fraud or other misconduct? On the issue of being informed, the EDP regulations that were subsequently issued in June 1975, specifically required selected Soldiers be told the “specific facts and incidents which are the basis for the action.” k. The applicant's consent to separation was not voluntary. He was not told the specific facts and incidents that were the basis for his separation. He was misinformed as to the legal authority for his separation. Additionally, when the applicant met with the Army attorney, he was improperly told by that attorney he would receive an "other than honorable" administrative separation if he did not accept the EDP separation. This statement violated Army policy threatening a Soldier with more serious consequences if he or she does not accept an offer of administrative separation from command is a tactic often seen in misconduct cases involving offenses subject to court- martial. However, that action was prohibited in the EDP program. The EDP could not be used "as a substitute for appropriate administrative action" for the applicant's marijuana offense. Moreover, the notice letter applicant received said if he declined the offered separation, he could be separated based upon "subsequent conduct.” The Army lawyer's statement that the applicant’s prior conduct would be used to separate him less than honorably was in direct contravention to this statement in the notification letter. The Board should conclude the applicant’s acceptance of the EDP discharge was not voluntary and was an error or injustice warranting relief. l. The EDP was supposed to be used for individuals with poor attitudes or clearly substandard performance. The applicant’s service record is devoid of evidence of these characteristics. Instead, the service record shows applicant had significant medical problems. He suffered from frequent severe headaches and blackouts. Presumably, the applicant's medical problems made him a burden to command. After the applicant committed his marijuana offense, command made no attempt to evaluate his potential for future service or offer him treatment in violation of 32 C.F.R. § 62.4(a)(2)(1974). Instead, the applicant received a bar to re-enlistment and Which put him on the path to an administrative separation. When the EDP was implemented at Fort Gordon in November 1974, it offered command an easy way to get rid of burdensome Soldiers with persistent medical issues and a potential drug problem. m. The use of the EDP to separate a soldier with burdensome medical issues was contrary to the intent of the program. The applicant should never have been selected for inclusion in the program. The GAO found the type of discharge assigned to EDP participants varied between the services. In the Air Force, all EDP participants received honorable discharges. In the Navy, all received general discharges. The Army provided both types. The GAO found that "issuing different discharges for generally the same type of marginal behavior and performance is inconsistent and inequitable." This Honorable Board should concur with the GAO recommendation and find the EDP program was implemented in an inconsistent and inequitable program. Accordingly, relief should be granted. n. Accordingly, this Honorable Board should conclude that an error or injustice exists because the Army erroneously applied AR 635-200, chapter 5-37 to separate the applicant. Counsel notes the applicant was not referred to the Army’s Alcohol and Drug Abuse Treatment and Control Program for evaluation and treatment. He further states Department of Defense regulations, in effect at the time required the applicant to be considered for medical evaluations and treatment prior to the initiation of administrative action. o. The ABCMR has an obligation to correct errors and injustices. When it fails to correct an injustice clearly presented in the record before it, it is acting in violation of its statutory mandate under 10 U.S.C. 1552. The applicant has shown both clear legal errors in his separation with a general discharge and an injustice. A discharge upgrade is an appropriate remedy. 3. The applicant makes the following statement: a. Around February 1975, he was called into a meeting and notified by a captain he was initiating proceedings to discharge him from the Army. The captain told him either he take a discharge with a general characterization or he would be kicked out of the Army with a bad discharge. He was asked to sign the acknowledgement and waiver form on the spot. He was not given time to think the matter over. b. He did not want to be discharged from the Army, and the reason he took the discharge was that he had no choice. He is not a lawyer and could not know of the legal errors set forth in his application for relief to the ABCRM until his legal counsel made him aware of them. He did not have the 1975 version of the Army regulations available to him after his discharge from the Army. 4. The applicant’s records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on two occasions for: * being absent without authority from is from on or about 15 July 1974 to on or about 17 July 1974 * wrongfully possessing an undetermined amount of marijuana on or about 21 October 1974 5. On 4 February 1975, his immediate commander notified him of his intent to initiate action to discharge him from the Army under the provisions of paragraph 5-37 (Expeditious Discharge Program) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). The commander stated the reasons for this action were the applicant's inability to cope with the military environment and his continued lack of response to counseling sessions by his superiors. These factors indicate a complete lack of potential for productive military service. The commander informed him that he intended to recommend his service be characterized as General, under honorable conditions. He informed him that the issuance of a less than honorable discharge could preclude his eligibility for many or all veterans' benefits and he could expect to encounter substantial prejudice in civilian life. He also advised him of his right to consult with legal counsel, to submit a statement in his own behalf, or to waive any of the aforementioned rights. 6. The applicant acknowledged receipt of the commander's notification of intent to separate him under the provisions of the EDP. He consulted with legal counsel and was advised of the basis for the contemplated separation from the Army under the provisions of chapter 5 of Army Regulation 635-200, the effect on his future enlistment in the Army, the possible effects of a general discharge, and of the procedures and rights that were available to him. The applicant voluntarily consented to this separation action. He acknowledged he understood if he were issued a General Discharge Certificate he could expect to encounter substantial prejudice in civilian life. He also declined to submit a statement on his own behalf. 7. On 6 February 1975, the applicant underwent a mental evaluation for separation by a behavioral science specialist who indicated: a. The applicant seems to be an immature, irresponsible person who has little regard for rules and regulations. At this time the applicant is experiencing some depression but it is situational. Information given by the applicant shows she never suffered from depression in the past. His present state of mind is probably due to the fact he is being discharged and he desires to stay in the Army. b. This condition will probably not be of long duration. The applicant has shown very poor performance since his enlistment and his behavior has not improved. The applicant is cleared for any action deemed necessary by command. 8. On 27 February 1975, the appropriate authority approved the applicant’s expeditious for failure to meet acceptable standards for continued military service. He directed the applicant be furnished a General Discharge Certificate. 9. On 5 March 1975, the applicant was discharged under the provisions of chapter 5 of Army Regulation 635-200, paragraph 5-37 and DA Message 08222OZ, November 1974. He completed 9 months, and 1 day of active service that was characterized as general, under honorable conditions. The applicant acknowledged he had been offered a copy of the proceedings leading to his discharge under the provisions of Army Regulation 635-200. He further acknowledged receipt of copy. 10. The applicant’s record is void of documentation that shows he was treated for an injury or an illness that warranted his entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he was issued a permanent physical profile or underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 11. On 21 December 2018, the Army Review Boards Agency (ARBA) Psychologist provided an advisory opinion. The advisory found the available documentation showed the applicant met medical retention standards for all medical conditions and there was no indication for physical disability evaluation system processing. There is no available evidence supporting a change to his narrative reason for separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. The applicant was provided a copy of the advisory opinion on 3 January 2019 and given an opportunity to submit comments. He did not respond. 13. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of 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 EDP. 14. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB). 15. In reaching its determination, the Board can consider the applicant's petition, his statements, and the FSM's service record, in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the complete application with his attorney’s legal brief and all evidence, the Board determined that the evidence does not support any corrective action. The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered. Regarding the applicant’s specific request to upgrade his general discharge under honorable conditions to an honorable discharge, the Board determined the record did not support that request. In reference to his medical concerns, the advisory official determined there was no medical condition(s) requiring a fitness determination during his period of service or referral to a medical board. The applicant was provided an opportunity to rebut the advisory medical opinion; however, he did not respond. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. 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 Army Board for Correction of Military Records (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 from the Army. a. Chapter 5, paragraph 5-37 (Expeditious Discharge Program), in effect at the time, provided for the discharge of enlisted personnel who demonstrated 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. The regulation provided that no individual would be discharged under this provision unless the individual voluntarily consented to the proposed discharge. Individuals discharged under this regulation were issued either an honorable or a general discharge. b. Chapter 3, paragraph 3-7a, provides that 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. 3. In a message dated 8 November 1974 the Deputy Chief of Staff for Personnel announced the expansion of the EDP. The program provided for the separation of Soldiers whose acceptability, performance of duty, and/or potential for continued effective service fall below the standards required for retention in the Army. Soldiers may be separated under this program when subjective evaluation of their commanders identifies them as lacking qualities for continued military service because of attitude, motivation, self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. Soldiers considered for separation under this expanded program had to agree to separation under this program. Soldiers who did not agree to separation under this provision were not exempt from separation under another provision of the regulation. An honorable or general discharge was required. 4. On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 5. 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. 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. 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) AR20160015393 8 1