ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 October 2019 DOCKET NUMBER: AR20170013721 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). 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 he is requesting consideration of his under honorable discharge to be upgraded to an honorable discharge. He states he is requesting Veterans Affairs (VA) medical help and needs this upgrade. He states he was released from the Army because his father was ill with cancer. He is the oldest of 8 children and had to help his mother. His father passed in April one year later. 3. A review of the applicant’s record shows: a. He enlisted in the Regular Army on 20 January 1975. b. On 2 September 1975, the applicant accepted non-judicial punishment (NJP), for without authority absent himself from his unit and did so remain absent until on or about 22 August 1975 and on 8 October 1975, for without authority fail to go at the time prescribed to his place of duty. c. On 3 November 1975, 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 has received two Article 15’s and four counseling statements for indicated apathy. His evident immaturity has proven him to be unsuitable to remain on further active duty in the United States Army. d. 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. e. On 11 November 1975, 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. f. On 12 November 1975, 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 8 months and 27 days of active military service and lost time from 27 July 1975 to 21 August 1975. 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 documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board found relief was not warranted. Based upon the short term of honorable service completed prior to a pattern of misconduct, as well as in the Board’s opinion already receiving some clemency by his command by receiving a General Discharge at the time of separation, the Board concluded that there was insufficient evidence of an error or injustice which would warrant changing the characterization of service. ? 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 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. 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 or 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 FOLLOWS092113 ABCMR Record of Proceedings (cont) AR20170013721 3 1