ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:   19 April 2019 

	DOCKET NUMBER:  AR20170014408


APPLICANT REQUESTS:  An upgrade of his under honorable conditions 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 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 that he want his discharge upgraded to honorable.

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

	a.  He enlisted in the Regular Army on 22 January 1974.  He entered active duty for training (ADT) on 22 January 1974 and he was honorably released from ADT on 5 July 1974.

	b.  On 20 February 1979, his immediate commander advised him that he intended to initiate action to discharge him from the Army under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program (EDP)).  He cited the specific reasons as:

* lack of the self-discipline necessary to be a productive Soldier as evidenced by his failure to follow instructions 
* his actions had resulted in a rehabilitative transfer within the 2nd Basic Training Brigade and two (2) Article 15 in the 9th Battalion
* he had been counseled and given sufficient time to improve, but no improvement had been noted


	c.  The applicant acknowledged receipt of the notification of his proposed discharge from the Army on 21 February 1979.  He elected not to submit a statement in his own behalf.  He also voluntarily consented to this discharge.

	d.  Subsequent to this action, the applicant’s commander recommended a General Discharge Certificate for failure to meet acceptable standards for continued military service under the provisions of AR 635-200.

	e.  The separation authority approved the discharge under the provisions of paragraph 5-31 of AR 635-200, and directed the applicant be furnished a General Discharge Certificate.

	f.  The applicant was discharged from Army on 2 March 1979.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of AR 635-200, chapter 5-31, and his service characterization was under honorable conditions (general).  He completed a period of 1 year, 2 months, and 9 days with 5 months, and 14 days of prior service.

4.  The applicant applied to the Army Discharge Review Board (ADRB) and on 18 Jan 1982. The ADRB found his discharge proper and equitable, and denied his request.

5.  The regulation in effect at the time provided for the Expeditious Discharge Program, 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.

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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the misconduct which resulted in the discharge and a lack of mitigating factors presented for the misconduct by the applicant, the Board concluded that the characterization of service received at the time of discharge was appropriate.


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) sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-31 (or 5-37) 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 Army Regulation 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.

	b.  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 of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).

	c.  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 because of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record.

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.

ABCMR Record of Proceedings (cont)	 AR20170014408


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