ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 June 2019 DOCKET NUMBER: AR20170007815 APPLICANT REQUESTS: an upgrade of his general under honorable condition discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 his discharge was unfair. He was involved in an incident whereas another Soldier drew a weapon on him in the barracks. The chain of command thought it was easier to sweep the issue under than rug since the Soldier was transferring to another duty station. He was asked for his input on the situation and he told them he no longer felt safe in the military. He was told to remain in the barracks until his discharge paperwork was completed. It took approximately two months to process and he never realizes he received under honorable condition (general) discharge. He believes this to be unfair since he had not done anything wrong. 3. The applicant’s service records shows: a. On 24 July 1979, he enlisted in the Regular Army. b. The applicant accepted nonjudicial punishment under the provisions of Article 15 on the following occasions: * 7 May 1980, for wrongfully appearing at guard mount in an unclean uniform; * 23 June 1980, punishments of extra duty and restriction (suspended for 60 days) were vacated. c. On 8 July 1980, the applicant's immediate commander notified the applicant that he was initiating action to separate him from service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program (EDP), with a General Discharge Certificate. As reasons for the proposed separation action, the applicant's commander cited his substandard duty performance, poor attitude, lack of military bearing, and his unwillingness to cooperate with or follow instructions of his superiors. Repeated counselling were negative and rehabilitative transfer between platoons was unsuccessful. d. The applicant acknowledged receipt of the pending EDP notification on 9 July 1980. He consented to this discharge. He acknowledged: * he understood if he were issued a General Discharge under honorable conditions, he might expect to encounter substantial prejudice in civilian life * he had been provided the opportunity to consult with an officer of the Judge Advocate General's Corps * He acknowledged that if he declined to accept this discharge voluntarily, he might at a future time, if his conduct so warrants, be subject to separation under other provisions of law or regulation * he elected not to submit a statement in his own behalf e. On 29 July 1980, the separation authority approved an EDP under the provisions of paragraph 5-31, AR 635-200 and directed issuance of a General Discharge Certificate. f. On 11 August 1980, the applicant was discharged from active duty and transferred to the U.S. Army Reserves. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of paragraph 5-31 of AR 635-200 with an under honorable conditions (general) discharge. He completed 1 year and 18 days of active service. It also shows he was authorized or awarded the Sharpshooter Marksmanship Qualification Badge with Pistol Bar (.45 Cal). 4. By regulation, commanders with the ability to request expeditious elimination of substandard, nonproductive Soldiers before board or punitive action becomes necessary. These provisions are intended to relieve unit commanders of the administrative burden normally associated with processing eliminations for cause through administrative discharge boards by providing a means to discharge such personnel expeditiously before they progress to the point where board or punitive action becomes necessary. 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. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the short term of service, the record showing a pattern of poor performance, and the applicant failing to show change to that performance after a rehabilitative transfer between platoons, the Board agreed that the applicant's discharge characterization was warranted. 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 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 5 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 AR 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 1-9d (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 or 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 general, except when discharged by reason of misconduct, unfitness, or unsuitability. 3. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170007815 3 1