ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 June 2019 DOCKET NUMBER: AR20160017045 APPLICANT REQUESTS: upgrade of his discharge from general to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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. The applicant states he does not believe the record to be in error. His battalion was offered an expeditious discharge program so he volunteered and was accepted. He received a general discharge under honorable conditions and he would like to be upgraded to an honorable discharge. 3. On 11 February 1974, he enlisted in the Regular Army. 4. In August 1975, the applicant accepted non-judicial punishment (NJP) on 2 separated occasions for wrongfully possessing 1 ounce of marijuana and disrespecting a superior commissioned officer. 5. On 20 August 1975, the applicant’s commander initiated action to discharge him under the provisions of paragraph [5-37], Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel). He recommended the applicant receive a General Discharge Certificate. The reasons for his proposed actions were the: * applicant’s constant counseling for being late to formations; failing to be at his appointed place of duty; refusing to obey an order * imposition of NJP against the applicant on 2 occasions 6. The applicant acknowledged notification of the proposed discharge and voluntarily consented to be discharged from the Army. He waived his right to submit a statement in his own behalf and acknowledged he had been provided the opportunity to consult with legal counsel. 7. On 3 September 1975, the approving authority approved his administrative discharge under the provisions of paragraph 5-37, AR 635-200 and directed the issuance of a General Discharge Certificate. 8. On 16 September 1975, the applicant was accordingly discharged. He completed 1 year, 7 months, and 6 days of net active service. He was not awarded or authorized a personal award. 9. AR 635-200, chapter 5, paragraph 5-37, provided the policy and outlined the procedures for separating individuals under the Expeditious Discharge Program (EPD). The EPD provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel. An honorable discharge or general discharge could be issued under this program. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. b. A general discharge is a separation from the Army under honorable conditions. 10. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. 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. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the relatively short term of service completed and the applicant already receiving a general discharge, the Board agreed that there was insufficient evidence of an error or injustice which would warrant making a change to the characterization of service. 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. 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 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority and general provisions governing the separation of enlisted Soldiers prior to expiration of term of service (ETS) to meet the needs of the Service and its members and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates. a. Chapter 5 (Separation for Convenience of the Government), Section II (Secretarial Authority), paragraph 5-1, provides that the separation of enlisted Soldiers for the convenience of the Government is a prerogative of the Secretary of the Army and will be accomplished only by his authority. Except as delegated by this regulation or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be in the Secretary’s discretion with issuance of an honorable or general discharge certificate as determined by him. Chapter 5 of this Army regulation also provides the categories for authorizing the discharge of Soldiers for the convenience of the Government. b. Paragraph 5-37, provided the policy and outlined the procedures for separating individuals under the Expeditious Discharge Program (EPD). The EPD provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel. An honorable discharge or general discharge could be issued under this program. c. 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. Whenever there is doubt, it is to be resolved in favor of the individual. d. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 3. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “KMN” as the appropriate code to assign to enlisted Soldiers discharged under the provisions of Army Regulation 635-200, paragraph 5-37, based on failure to maintain acceptable standards for retention (Expeditious Discharge Program). 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160017045 0 3 1