ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 April 2019 DOCKET NUMBER: AR20160019170 APPLICANT REQUESTS: Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in: a. (High School Graduate or Equivalent) “Yes” is annotated. b. (Character of Service) “honorable” in lieu of “under honorable conditions (general).” APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 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, in effect, he was under the impression that after 6 months, his general discharge would be changed to an honorable discharge. This change would be beneficial toward employment opportunities, tax benefits, Department of Motor Vehicles, etc. He also states that he got his high school diploma while on active duty on “8-11-82” and he believes his service record will show this. 3. On 29 January 1980, the applicant enlisted in the Regular Army for 3 years. He held military occupational specialty 12B (Combat Engineer). 4. A Report of Investigation-Line of Duty and Misconduct Status, dated 8 July 1981, shows the applicant was climbing through a barracks window into a locked room when he fell 12 feet and sustained a bimalleolar ankle fracture. He had been drinking, but it could not be determined if he was intoxicated due to conflicting reports. He was found negligent, but not willfully negligent. The injury was determined to be in the line of duty. 5. Two statements of counseling show the applicant was counseled for failure to repair on 9 and 27 July 1982. 6. The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two different occasions: a On 20 July 1982, for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of reduction to pay grade E-2 (Suspended until 20 September 1982) and a forfeiture of pay and extra duty. On 27 July 1982, the suspension was vacated and he was reduced to pay grade E-2. b. On 28 July 1982, for being derelict in the performance of his duties on 24 and 25 July 1982. His punishment consisted of a forfeiture of pay, extra duty, and reduction to pay grade E-1. 7. On 4 August 1982, the applicant’s immediate commander notified the applicant that he was initiating action to separate him from the Army under the provisions of chapter 5-31, Army Regulation (AR) 635-200 (Personnel Separations), Expeditious Discharge Program (EDP) with service characterized as under honorable conditions. The commander cited the bases for the recommendation was the applicant’s inability to adapt socially or emotionally to the U.S. Army, his lack of self-discipline, and his failure to demonstrate promotion potential. 8. On 4 August 1982, the applicant acknowledged notification of the proposed separation action and declined to consult with legal counsel. He was advised of the basis for the contemplated separation action under the provisions of paragraph 5-31, AR 635-200, 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 declined to make a statement in his own behalf. He also acknowledged he understood: * if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life * there was no automatic upgrading nor review by any government agency of a characterization of service under honorable conditions * he had to apply to the Army Discharge Review Board or the Army Board for Correction of Military Records, if he wished a review of his characterization of service 9. Subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him under the EDP. 10. On 5 August 1982, the separation authority approved the applicant's discharge action and directed the issuance of a General Discharge Certificate. 11. Accordingly, on 11 August 1982, he was discharged. His DD Form 214 confirms he was discharged under honorable conditions in accordance with paragraph 5-31h(2), AR 635-200, for failure to maintain acceptable standards of retention (EDP). He completed a total of 2 years, 6 months, and 13 days of creditable active military service and he had no lost time. His DD Form 214 also shows in: * high school graduate or equivalent, “NO” is annotated * character of service, “Under Honorable Conditions” 12. The applicant contends he was under the impression that after 6 months his general discharge would be upgraded to an honorable discharge. However, at the time of separation he acknowledged he understood he had the option of applying to the ADRB or to the ABCMR for an upgrade of his discharge. The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. The Board decides each case individually upon its own merits. 13. The available service record does not contain evidence that shows the applicant earned a high school diploma while on active duty. 14. AR 635-200 provided for the separation of personnel because of unsatisfactory performance or conduct (or both) and applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life. 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 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 that relief was not warranted. Based upon the multiple occasions of misconduct, the Board concluded that the characterization of service received at the time of discharge was appropriate. Additionally, the Board found no evidence either provided by the applicant or within the military service record to show he graduated from high school prior to departing military service. For that reason, the Board recommended denying the applicant’s request. 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. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 5, then in effect, set forth the conditions under which enlisted personnel could be discharged, released from active duty or active duty for training, or released from military control, for the convenience of the Government. Paragraph 5-31 provided the policies and procedures for separating enlisted personnel under the Army's EDP. b. Paragraph 5-31 of that regulation provided for the separation of personnel because of unsatisfactory performance or conduct (or both). This policy applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation or self-discipline for military service, or that they had demonstrated characteristics not compatible with satisfactory continued service. c. 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. 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 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. 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. ABCMR Record of Proceedings (cont) AR20160019170 4 1