ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:       17 April 2019

	DOCKET NUMBER:  AR20160018955


APPLICANT REQUESTS: an upgrade of his discharge from under honorable conditions (general) to honorable.   

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for the Review of Discharge)

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 was segregated and treated poorly due to his geographical background.  As a result of being mistreated and feeling like a victim, he acted in a way that he is not proud of.  His actions affected his discharge status.  His current discharge status is hindering him from a successful future, and not allowing him to utilize services that would help him to be a productive member of society.

3.  On 21 June 1979, he enlisted in the Regular Army.  His records reveal an extensive history of indiscipline for various infractions.  

4.  Non-judicial punishment (NJP) was imposed against the applicant from August 1980 to October 1981 on multiple occasions for:

* violating a lawful general order (possessing a prohibited weapon)
* disrespecting a superior noncommissioned officer (NCO)
* failing to be at his appointed place of duty (extra duty)
* disobeying a lawful order from a superior NCO
* failing to be at his appointed place of duty (Division Readiness Rollout Field)

5.  On 27 September 1981, his duty status was changed from present for duty to confined civilian authorities.  He was released from confinement and returned to duty on 1 October 1981.     

6.  On 24 November 1981, the applicant's commander advised him of his intent to initiate separation action against him under the provisions of paragraph 5-31 of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), under the Expeditious Discharge Program (EDP).  The commander recommended a General Discharge Certificate and cited the specific reasons as:

* poor attitude
* lack of motivation
* lack of self-discipline
* failure to demonstrate promotional potential
* inability to accept instructions and directions
* lack of cooperation with peers and superiors
* NJP on multiple occasions

7.  The applicant acknowledged notification of the proposed separation action.  He consulted with legal counsel and also acknowledged that:

* he voluntarily consented to the discharge, and would not submit statements in his own behalf
* he had been advised of the basis for the contemplated separation action under the provisions of paragraph 5-31, AR 635-200 
* he had been advised of the effect on future enlistment in the Army, the possible effects of a general discharge and of the procedures and rights that were available to him
* he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life

8.  On 30 December 1981, his commander initiated separation action against him under the expeditious discharge program.  Subsequently, the separation authority approved the applicant's discharge.  He stated that the applicant was deemed to have no potential for useful service under conditions of full mobilization, and directed that he be issued a general discharge certificate.

9.  On 15 January 1982, the applicant was discharged accordingly.  He completed 2 years, 6 months, and 18 days of net active service.  He was awarded no personal awards and had lost time from 24 to 30 September 1981.   

10.  The record contains no indication of administrative procedural or other errors that would tend to jeopardize his rights.

11.  Army Regulation 635-200 states 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.  The regulation also provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  

12.  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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when considering discharge upgrades, the Board determined that relief was not warranted.  Based upon the relatively short term of military service completed prior to multiple violations of the UCMJ, as well as a lack of evidence by the applicant to show how he has grown and learned from the events that caused his discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate.  For that reason, the Board recommended denying the applicant’s request for relief.

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, 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.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade and general aptitude.  

3.  Army Regulation 635-200 provides that: 

     a.  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.

     b.  A general discharge is a separation from the Army under honorable conditions if an individual's military record was not sufficiently meritorious to warrant an honorable discharge. 

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.  
     
     a.  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.  
     b.  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.

ABCMR Record of Proceedings (cont)	 AR20160018955
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