ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 October 2019 DOCKET NUMBER: AR20170004949 APPLICANT REQUESTS: an upgrade of her under honorable conditions discharge to an honorable discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD 214 (Certificate of Release or Discharge from Active Duty) * Military Service Records 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 (ABCMR) 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 it has been more than three years because she did not know it could be changed or that she was entitled to a change request. She stated the severity does not justify the discharge. The Non-commissioned officer in charge (NCOIC) at the time had the discharge changed from honorable to general due to his issues. She had received the Army Certificate of Achievement prior to his arrival. He did not believe females should be in the military. She states her action was the result of her command telling her “they had to have a reason to discharge me.” 3. A review of the applicant’s service record shows: a. She enlisted in the Regular Army (RA) on 6 April 1978. b. Her DA Form 2-1 (Personnel Qualification Record) shows in item 35 (Record of assignments) she was absent without leave (AWOL) on 30 September 1978. c. DA Form 2627 (Record of proceedings under Article 15) shows: * on 10 October 1978, she accepted non-judicial punishment for being AWOL for the period from 29 September 1978 to 1 October 1978 * punishment included reduction to private (PVT/E-2) * on 18 December 1978, the reduction to grade of E-2 was set aside, all rights, privileges, and property affected were restored d. On 19 December 1978, her immediate commander notified the applicant of his initiation action to discharge her under the provisions of paragraph 5-31 (Expeditious Discharge Program (EDP)), of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for reason of apathetic attitude and inability to adjust to a regimented military system. He informed the applicant he was recommending she be discharged, with a general discharge certificate, prior to her becoming a disciplinary problem. She was informed if she was issued the general discharge, she: * may expect to encounter substantial prejudice in civilian life * had the right to consult with a legal counselor * had the right to decline the discharge, which subsequent conduct may warrant her being subjected to disciplinary or administrative separation under other provisions of laws or regulations * be subject to recoupment of any unearned portions of enlistment which she received * had the right to submit a statement in her behalf, or she may waive the right * will not be permitted to apply for enlistment in the U.S. Army within 2 years from discharge e. On 19 December 1978, the applicant acknowledged the notification of proposed discharge, and voluntarily consented to the discharge. She elected not to submit a statement in her own behalf. f. Fort Leonard Wood (FLW) Form 106 (Consultation Request), dated 14 November 1979, shows the applicant’s was referred for a mental hygiene consultation as part of her pending discharge. g. U.S. Army Medical Department Activity (USA MADDAC) Form 117-R (Report of Mental Hygiene Evaluation), dated 20 November 1979, shows the applicant met the criteria for the discharge under the provisions of paragraph 5-31 (EDP), of AR 635-200. She was very apathetic towards her military duties, deficient in appropriate attitude and motivation, and would likely continue to demonstrate poor promotion potential. The applicant indicated that she would seek by whatever means necessary to secure a discharge. She was psychiatrically cleared for the discharge. h. On 12 December 1979, the special court-martial convening authority considered and approved the recommended discharge from the RA with a General Discharge. i. Orders 361-4, dated 27 December 1979, published by Headquarters, U.S. Army Training Center Engineer and Fort Leonard Wood, MO, shows the applicant was reassigned to the Fort Leonard Wood separation transfer point for separation processing for her scheduled discharge on 28 December 1979. j. DD Form 214 for the period ending 28 December 1979 shows in: * item 12b (Separation date this period) 28 December 1979 * item 12c (Net active service this period) 1 year, 8 months, and 21 days * item 13 (Decorations, Medals, Badges, Citations and campaign Ribbons Awarded or Authorized) Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * item 23 (Type of separation) Discharge * item 24 (Character of service) Under Honorable Conditions * Item 25 (Separation authority) AR 635-200, Paragraph 14-12(c) * Item 28 (Narrative reason for separation) EDP (Failure to maintain acceptable standards for retention) * Item 29 (Dates of time lost during this period) from 29 September 1978 to 30 September 1978 4. By regulation, AR 635-200, members who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army because of existence of one or more of the following conditions may be separated when they have failed to respond to counseling: * poor attitude * lack of motivation * lack of self-discipline * inability to adapt socially or emotionally * failure to demonstrate promotion potential 5. 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 review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. She did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the short term of honorable service completed prior to periods of AWOL, the Board agreed that the applicant's discharge characterization was warranted as a result of her performance. 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 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 Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. 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. b. Paragraph 5-31 of that regulation governs the Expeditious Discharge Program. It states members who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army because of existence of one or more of the following conditions may be separated when they have failed ot respond to counseling: * poor attitude * lack of motivation * lack of self-discipline * inability to adapt socially or emotionally * failure to demonstrate promotion potential 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170004949 4 1