ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: . BOARD DATE: 1 October 2019 DOCKET NUMBER: AR20170003797 APPLICANT REQUESTS: an upgrade of his under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation 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 he would like to correct his discharge from general under honorable conditions to honorable discharge. He believes the record is in error since at the age of 18 years he was under a lot of pressure. His mother was sick and he was absent without leave (AWOL) a couple of times going back and forth to Detroit to see if she was okay. He states, at the time of his discharge, he was told to take the general under honorable conditions and when he got home in six months he could change it to an honorable discharge. For this reason, he believes he requested it be corrected. 3. A review of the applicant’s record show the following: a. He enlisted in the Regular Army 4 December 1974. b. His DA Form 2-1 (Personnel Qualification Record) shows he was absent without leave (AWOL) on two occasions. c. He accepted non judicial punishment (NJP) 13 June 1975 for being absent from his unit 2 June 1975 to 10 June 1975. He was reduced to private/E-1. d. He accepted NJP 7 August 1975 for being absent from his unit from 7 July 1975 to 29 July 1975. He was reduced to private. e. Special Court-Martial Order Number 102 reveals he was absent from his unit from 23 October 1975 to 15 November 1975. He was found guilty; sentenced to reduction to grade E-1; forfeiture of $25 pay per month for two months and confinement at hard labor for 31 days. The sentence was adjudged on 9 December 1975, approved and duly executed. f. DA Form 4187 (Personnel Action) reflects his duty status was changed from confined military authorities to present for duty 6 January 1976. g. In Memorandum, Subject: Discharge from the United States Army, 5 January 1976, his commander initiated discharge under provisions of Paragraph 5-37, Expeditious Discharge Program, (AR 635-200 (Personnel Separations – Enlisted Personnel) for failure to assimilate into the Army environment as evidenced by his attitude and the fact he received 1 Court- Martial and 2 punishments under Article 15 of the Uniform Code of Military Justice. h. Memorandum on 6 January 1975, he acknowledged notification of proposed discharge in which he waived submitting a statement on his behalf and that he understood if he was issued a general discharge under honorable conditions he might expect to encounter substantial prejudice in civilian life. He voluntarily consented to this discharge. i. Memorandum 7 January 1976, commander recommends applicant be discharged for failure to properly adjust to military service. j. The separation authority approved the applicant’s request for discharge on 15 January 1975, under the provisions of paragraph 5-37, AR 635-200, and recommended expeditious discharge and applicant be furnished a General Discharge Certificate. k. He was discharged 16 January 1976. His DD Form 214 shows he served 10 months 26 days. He lost 77 days, from 2 June 1975 to 9 June 1975; 7 July 1975 to 28 July 1975; 23 October 1975 to 14 November 1975; and 9 December 1975 to 1 January 1976. His character of service was under honorable conditions (general). l. There is no indication he applied to the Army Discharge Review Board for review of his discharge within that board's 15 year statute of limitations. 4. AR 635-200, paragraph 5-37, in effect at the time, Discharge for failure to demonstrate promotion potential, Expeditious Discharge Program. 5. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. 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 general, except when discharge by reason of misconduct, unfitness, and unsuitability. 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, the Board found relief was not warranted. Board members considered the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance (FY2018 DOD Guidance). The Board concluded that given the short term of honorable service completed prior to multiple AWOL offenses totaling 77 days of lost time, the characterization of service received at the time of separation was appropriate. 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 (AR) 635-200 (Personnel Separations-Enlisted Personnel), in effect at the time sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is 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 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 if an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness and unsuitability. 3. AR 635-200, paragraph 5-37, effect at the time, Discharge for failure to demonstrate promotion potential. Expeditious Discharge Program: a. General. This program provides that individuals who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army, because of the existence of one or more of the following conditions, may be discharged. * poor attitude * lack of motivation * lack of discipline * inability to adapt socially or emotionally * failure to demonstrate promotion potential 4. The SPD/RE Code Cross Reference Table in effect at the time of his discharge provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers. This cross reference table shows the SPD code and a corresponding RE code. The SPD code "KMN; KMN code was changed in March 1976 to JGH (Non Retention on Active Duty)" has a corresponding RE code "3" will be included in orders directing the member to report to an appropriate transfer activity for separation processing. Reason will be for “failure to meet acceptable standards for continued military service.” 5. 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) AR20170003797 4 1