ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  16 July 2019

	DOCKET NUMBER:  AR20170008902


APPLICANT REQUESTS:  an upgrade to his under honorable conditions (general) discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-authored letter
* DD Form 214 (Report of Separation from Active Duty)
* Case Management Division response letter
* DD Form 293 (Application for the Review of Discharge)
* Reference letter from RHD

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 is requesting consideration of his under honorable discharge to be upgraded to an honorable discharge.  He states that he joined the Army and intended to make it a career.  He knows he could have made a difference but the treatment of a commissioned officer made it difficult for him.  He still questions that treatment to this day.  Was it color, race, accent, origin, or was it his work performance? He was asked to do the same duties over and over again, and little by little, he started getting upset and began refusing to repeat the work.  His work was inspected and there was nothing wrong with any of it.  This led them to discharge him from active duty with no warning or charges.  He even asked for a different assignment but they refused.

3.  The applicant provides a letter from Reverend RHD who states his letter stands the applicant. The applicant has proven himself as being an individual of good character and high moral standards.  He has known him for the last 13 years as a man of strong Christian morals and lasting dedication to the church.  He is considerate of others and sacrifices his own time, effort and finances to assist others in need.  He has a strong work ethic and has provided for his family in true dedication.   He has demonstrated a strong commitment to his country and will always bear allegiance to protect it.

4.  A review of the applicant’s record shows:

	a.  He enlisted in the Regular Army on 13 November 1975.

	b.  He received 6 counseling’s between 16 Aril 1976 and 8 January 1977, for failure to obey lawful order, disrespect to a noncommissioned officer (NCO), lack of self-discipline, fighting, disorderly in quarters, military discipline, attitude, and disappearance from work.

	c.  On 11 August 1976, the applicant accepted non-judicial punishment (NJP), for possession of a controlled substance and on 4 January 1977, for disobeying a lawful order from a noncommissioned officer (NCO).

	d.  On 7 February 1977, the applicant's immediate commander notified the applicant that he was initiating actions to separate him from service under the provisions of Army Regulation (AR) 635-200, paragraph 5-37.  His commander advised him of the rights available to him, and of the effect of any action taken by him to waive his rights.  He further advised him that he would recommend that he receive a general discharge.  The commander cited the specific reasons as the applicant’s marginal duty performance, lack of promotion potential, lack of adaptability to the military, and apathetic attitude toward military duties

	e.  The applicant acknowledged receipt of the proposed separation memorandum and waived representation by counsel and his right to submit a statement in his own behalf.  He acknowledged that he may encounter substantial prejudice in civilian life if he received a general discharge, under honorable conditions.  He voluntarily consented to the separation.

	f.  On 9 February 1977, the applicant’s immediate commander notified the applicant that he intended to recommend his discharge from the Army under the provisions of AR 635-200, paragraph 5-37 (Expeditious Discharge Program (EDP)).  He cited the specific reasons and recommended a discharge characterization due to the applicant’s marginal duty performance, lack of promotional potential, lack of adaptability to the military, and Article 15s (a field grade and a company grade).

	g.  On 11 February 1977, the separation authority approved the applicant's discharge under the provisions of the Expeditious Discharge Program by reason of failure to meet acceptable standards for continued military service and directed that he receive a General, Under Honorable Conditions Discharge Certificate.

	h.  On 24 February 1977, the applicant was discharged accordingly.  His DD Form 214 shows he was discharged under the provisions of paragraph 5-37 of AR 635-200 with a general discharge.  He completed 1 year, 3 months, and 12 days of creditable active military service. 

	i.  On 15 April 2013, the Army Discharge Review Board reviewed his case and determined due to statutory regulations it needed to be referred to this Board.

5.  By regulation (AR 635-200), Soldiers who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the Expeditious Discharge Program.  No member would be discharged under this program unless he/she voluntarily consented to the discharge.  

6.  In reaching its determination, the Board should consider the applicants statement in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After reviewing the application and all supporting documetns, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the pattern of misconduct which led to the separation, as well as the applicant already receiving a General Discharge, the Board concluded that there was insufficient evidence to show an error or injustice present which would warrant making a change to the characterization of service.
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:IF	:LT	:TC	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.

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 5 provided for the expeditious discharge program (EDP).  The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential could be discharged under the EDP.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  Soldiers had to consent to separation under this program in order for commanders to separate them under the provisions of the EDP.  Otherwise, a commander was required to separate Soldiers under other provisions of the regulation, which in most cases resulted in an under other than honorable conditions discharge.  Individuals discharged under this provision of the regulation were issued either a general or honorable discharge.

3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds.
	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 on the basis of equity, injustice, or clemency grounds, Boards 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)	 AR20170008902


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