ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  30 April 2019

	DOCKET NUMBER:  AR20160019097


APPLICANT REQUESTS: Upgrade his general discharge to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Self-authored letter (Detail of events leading to 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 wishes to have his discharge upgraded to honorable.  He states he was never afforded the opportunity to seek legal counsel during his incidents while in the military.  The applicant provides a detailed self-authored statement which is attached describing his military background, experience, and the incidents that led to his discharge. 

3.  The applicant provides a self-authored statement of his active duty service relative to his early discharge from the US Army

4.  A review of the applicant’s record shows:

	a.  He enlisted into the Regular Army on 19 April 1979.

	b.  On 10 March 1980, he accepted non-judicial punishment (NJP) for disrespect toward a superior commissioned officer.  His punishment included a suspended forfeiture of pay and extra duty.

	c.  On 16 April 1980, he was admitted to Landstuhl Army Regional Medical Center, suffering from a head injury allegedly cause by his having fallen from a military vehicle.  Investigation subsequently revealed that he had provoked a Soldier into striking him and suffered the injury as a result of this altercation.  Based on testimony provided by witnesses to the incident, it was the investigating officer's (IO) conclusion that the injury sustained by the applicant was proximately caused by his intentional misconduct.  The IO's finding was that injuries sustained by the applicant were “Not in Line of Duty –Due to Own Misconduct.”

	d.  On 18 April 1980, he accepted NJP for wrongfully communicating a threat to kill another Soldier and insubordinate conduct.  His punishment included reduction to private/E-1, forfeiture of $104.00, and extra duty and restriction for a period of 14 days.

	e.  On 16 March 1981, he accepted NJP for insubordinate conduct.  His punishment included reduction to private/E-1, forfeiture of $100.00 per month for two months, and extra duty and restriction for a period of 45 days.

	f.  On 21 April 1981, the applicant's immediate commander notified the applicant of his intent to initiate separation action against the applicant under the provisions of paragraph 5-31 (Expeditious Discharge program (EDP)) of Army Regulation 635-200 (Personnel Separations).  He cited the specific reasons as:

* Defective attitude
* Inability to adjust to military life
* Lack of motivation
* Lack of self-discipline
* Lack of promotional potential

	g.  On 23 April 1981, the applicant acknowledged receipt of the commander's notification and consented to this discharge.  He acknowledged:

* he was advised of the basis for the contemplated separation action under the provisions of paragraph 5-31, AR 635-200
* he was 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 may apply to the Army Discharge Review Board (ADRB) or the ABCMR for a review of his characterization of service; however, the act of consideration does not imply an upgrade of his discharge
* he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life

	h.  On 23 April 1981, the command recommended approval of separation.

	i.  On 27 April 1981, the separation authority approved the applicant's discharge under AR 635-200, paragraph 5-31 and directed the applicant be furnished a General Discharge Certificate. 

	j.  On 14 May 1981, the applicant waived medical examination for separation.

	k.  On 19 May 1981, the applicant was discharged in accordance with AR 635-200 paragraph 5-31 in the rank of private/E-1, with an under honorable conditions (general) characterization of service.  He completed 2 years, 1 month, and 1 day of active service.  

5.  By regulation, individuals discharged under the EDP may be awarded an honorable or general discharge as appropriate.

6.  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 and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined the relief was not warranted.  Based upon the short term of service completed prior to multiple UCMJ violations beginning, including some of a serious nature, 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.  The Department of the Army began testing the Expeditious Discharge Program in October 1973.  In a message, dated 8 November 1974, the Deputy Chief of Staff for Personnel announced the expansion of the Expeditious Discharge Program.  The program provided for the separation of Soldiers whose acceptability, performance of duty, and/or potential for continued effective service fell below the standards required for retention in the Army.  Soldiers could be separated under this program when subjective evaluation of their commanders identified 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.  An honorable or general discharge was required and there has never been any provision for an automatic upgrade of a discharge less than fully honorable.

3.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-31 (or 5-37 depending on the time frame per Message issued by the U.S. Total Army Personnel Command) 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.

	a.  Paragraph 1-9d (Honorable discharge) states 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.

	b.  Paragraph 1-9e (General discharge) states 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 a general, except when discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record.

4.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-37 () 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.

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.  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 based on 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)	 AR20160019097


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