ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  18 July 2019

	DOCKET NUMBER:  AR20170013954


APPLICANT REQUESTS: upgrade his under honorable conditions discharge to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)

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 wanted to be a dental hygienist, when he entered the Army.  He got over 90 percent on the exam.  He was told he had to retest and he missed the qualifying score by 10 points.  Months later he was informed, he could have gotten a 10 point waiver and he would have had the career of his dreams.  On two occasions he was set up to have vehicle accidents, but both failed, and soon after he was discharged out of the Army.  Last year he ran for city council, and he plans on running again for Haywood California.  

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

a. He enlisted in the Regular Army on 11 March 1980.

b.  The Article 15 is unavailable for review.  However, the company commander statement in support dated 30 April 1982, states.  He accepted non-judicial punishment (NJP) under the provisions of Article 15 on/for: 

*  30 November 1981 for failure to repair
* 14 January 1982 for disobeying an lawful order
* 13 April 1982 for disobeying a lawful order


	c.  On 29 April 1982 the immediate commander recommend the applicant be eliminated from the United states army and furnished with a general discharge certificate, under the provisions of paragraph 5-31, chapter 5  Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel).

	d.  On 30 April 1982, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of paragraph 
5-31 (Expeditious Discharge Program (EDP)), Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel).  The specific reasons are listed as the applicant's inability to adapt to military service and respond favorably to counseling and nonjudicial action.  

	e.  On 12 May 1982, he acknowledged receipt of the commander's notification and voluntarily consented to the discharge.  He acknowledged:

•	he understood if he were issued an under honorable conditions discharge, he could expect to encounter substantial prejudice in civilian life
•	he may apply to the Army Discharge Review Board (ADRB) or the ABCMR for a review of his characterization of service; however, the act of consideration does not imply an upgrade of his discharge

	f.  On 13 May 1982, the separation authority approved the discharge with an under honorable conditions discharge.
 
	g.  On 19 May 1982, DD Form 214 shows he was discharged under honorable conditions under the provisions of paragraph 5-31h (2), AR 635-200.  He completed 2 years, 2 months, and 9 days of active service.  

4.  The applicant's record is void of evidence that shows he applied for a discharge upgrade with the Army Discharge Review Board within 15 year statute of limitations.

5.  By regulation, individuals discharged under the EDP may be awarded an honorable or general discharge as appropriate.

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 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.  He was discharged for not responding to counseling and was provided an Under Honorable Conditions (General) characterization of service.  The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

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), in effect at the time, sets for the basic authority for separations of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) states that 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 3-7b (General Discharge) states that a general discharge is a separation from the Army under honorable conditions.  It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  The recipient of a general discharge is normally a member whose military record and performance is satisfactory.

	c.  Paragraph 5-31 (Expeditious Discharge Program), this program provides 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.

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 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)	 AR20170013954


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