ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 April 2019 DOCKET NUMBER: AR20170000829 APPLICANT REQUESTS: An upgrade of his honorable condition discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 that he want his discharge upgraded to honorable. This will help him have a better outlook for employment opportunities. He states he did not have any documentation to submit, however, we can contact his Veteran Affairs social worker Mr. BG, or email consultation to him should you have any questions or need information to support this request. 3. The applicant provides his DD Form 214 showing his service from 2 January 1980 to 1 March 1982. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 2 January 1980. b. He received nonjudicial punishment on: * 1 March 1980, for disobeying a lawful order * 30 June 1981, for failure to go to the prescribed place of duty, his punishment consisted, in part, of reduction to E-2 * 13 October 1981, for failure to go to the prescribed place of duty, his punishment consisted, in part, of reduction to E-1 * 21 October 1981, for violating a lawful general regulation c. On 22 February 1982, the applicant’s immediate commander initiated discharge proceeding from the Army under the provision of paragraph 5-31, Expeditious Discharge Program (EDP) Army Regulation (AR) 635-200 (Personnel Separations). He recommended a general discharge and cited the specific reasons: * poor attitude * lack of motivation * lack of self-discipline * failure to demonstrate promotion potential d. The applicant acknowledged receipt of the notification of his proposed discharge from the Army on 22 February 1982. He elected not to submit a statement in his own behalf. e. Following acknowledgement, the applicant’s commander recommended separation action against the applicant under the provisions of paragraph 5-31h(1) of AR 635-200. f. On 25 February 1982, the separation authority approved the applicant’s discharge under the provisions of, paragraph 5-31h(1), AR 635-200 and directed that he receive a Under Honorable Conditions discharge. g. The applicant was discharged from Army on 1 March 1982. His DD Form 214 shows he was discharged under the provisions of chapter 5-31h(1), AR 635-200 (Personnel Separations) for (EDP) (Failure to maintain acceptable standards for retention), and his service characterization is under honorable conditions. He completed a period of 2 years, 3 months. 5. The regulation in effect at the time provided for the Expeditious Discharge Program, 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. 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 the reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade request, the Board determined that relief was not warranted. Based upon the short term of service completed prior to multiple occasions of UCMJ offenses, 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. 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. Title10, 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) sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-31 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. Interim Change 4 to Army Regulation 635-200, dated 1 April 1982, eliminated the requirement to obtain the Soldier's consent for separation under the provisions of the Expeditious Discharge Program. a. Paragraph 1-13a(1) (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. b. Paragraph 1-13b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. The member may have had frequent nonjudicial punishments but not for serious infractions. He may be a troublemaker, but his conduct is not so bad as to require discharge for cause or a discharge under less than honorable conditions. When a member's service is characterized as general, except when discharged by reason of unsuitability, misconduct, homosexuality, or security, the specific basis for such separation will be included in the member's military personnel record. 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. 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) AR20170000829 3 1