ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  19 June 2019

	DOCKET NUMBER:  AR20170010728


APPLICANT REQUESTS:  a reconsideration of his previous request for an upgrade to his under honorable conditions discharge.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record).

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110004270 on 7 September 2011.

2.  The applicant states he is requesting due process of correction.  

3.  A review of the applicant’s service record shows:  

	a.  He enlisted in the Regular Army on 30 October 1979.  

	b.  He received nonjudicial punishment under Article 15 for/on:  

* 15 August 1980, being absent without leave (AWOL) from 21 June 1980 to 4 August 1980
* 9 September 1980, failing to go to his appointed place of duty
* On 24 December 1980, being AWOL from 1 November 1980 to 20 December 1980

	
   
c.  On 25 February1981, the applicant was notified by the immediate commander of the proposed discharge under the provisions of Army Regulation (AR) 635-200 (Enlisted Personnel – Personnel Separations), paragraph 5-31, Expeditious Discharge Program (EDP).  He recommended a general discharge and cited the specific reasons:

* poor attitude
* lack of respect for proper authority
* lack of motivation
* lack of self-discipline (uncooperative, arrogant and stubborn)
* failure to demonstrate promotion potential

	d.  On 25 February 1981, the applicant acknowledged receipt of the commander’s notification and consented to his discharge.  He acknowledged:  

* he had the right counsel and to submit a statement, he elected not to submit a statement on his own behalf  
* if he declined to accept the discharge voluntarily, he may be subject to separation under other provision of law or regulation
* action will be taken to recopy any unearned portion of enlistment or reenlistment bonuses received
* he may be deprived of his rights and benefits of a Veteran under both Federal and State laws he may expect to encounter substantial prejudice in civilian life because of an other than honorable conditions
* he elected not submit a statement on his own behalf

	e.  On 25 February 1981, the applicant’s immediate commander initiated discharge proceeding from the Army under the provision of paragraph 5-31, EPD, AR 635-200.  

	f.  On 26 February 1981, consistent with the chain of command recommendation, the separation authority approved the applicant’s discharge under the provisions of paragraph 5-31, EDP, AR 635-200, for failure to meet acceptable standards for continued active service and directed that he receive a general discharge certificate.

	g.  On 3 March 1981, the applicant was discharged from the Army.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of paragraph 5-31, EDP, AR 635-200, SPD (JGF) for failure to meet acceptable standards for retention, and his service characterization is under honorable conditions.  He completed 1 year and 15 days of active service with 109 days of time lost due to AWOL.  He was awarded or authorized Expert Marksmanship Qualification Badge.

4.  On 6 September 2011, the Board considered his petition for an upgrade of his discharge but found no evidence of an error or an injustice.  The Board denied his request.

5.  By regulation (AR 635-200), the EDP 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.

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 review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  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 completed prior to a pattern of misconduct, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.
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.  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.
3.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel.  

	a.  Chapter 5-31, states that the expeditious discharge program is for 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.  

	b.  Paragraph 1-13a, (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.  

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.


ABCMR Record of Proceedings (cont)	 AR20170010728


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