ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 June 2019 DOCKET NUMBER: AR20170016200 APPLICANT REQUESTS: * An upgrade to his under honorable conditions (general ) discharge * Change failure to maintain acceptable standards for retention in block 28 of DD Form 214 (Certificate of Release or Discharge from Active Duty) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 with continuation sheet from applicant’s spouse(Application for Correction of Military Record) * Clinical records notes(7) * Associate Degree certificate * Character letter, Ms. X___ * Cherry Hospital employee status verification * Employer evaluation of student * My FICO score letter * Official result for general educational development test * Official transcript, wake technical community college 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 believes his discharge is unjust because he was hurt in an accident that wasn’t his fault. Also he did not have any incidents while serving that would warrant any discharge other than an honorable discharge. He was pressured into taking the general discharge under honorable conditions from fear of being discharged dishonorably. 3. He provides a statement from his spouse who states the applicant had shared with her his account of his service and the applicant thought he had received an honorable discharge. The applicant found out the type of discharge issued during a visit to the identification card section of Seymour Johnson air force base. The applicant stated he had not received a court-martial, article 15 or a warning for bad behavior while on active duty. The applicant was injured as a result of an explosion close to him during a field training exercise in Germany. The applicant lost consciousness and temporary lost his hearing. The applicant was given a medical profile H3 for bilateral hearing loss. The applicant was placed on light duties due to his medical conditions. The applicant ask his commander for training in a new job and was denied. The applicant spent most of his time idle in the barracks which lead to drinking alcohol to relieve his boredom and pain. He was presented with a chapter 13 discharge but refused after consulting with his lawyer. Finally after consulting with his lawyer the applicant accepted a general discharge under honorable conditions. The applicants spouse closes her statement on behalf of the applicant hoping for the Board’s consideration and indicated the applicant felt he was pressured into taking a general discharge. 4. He also provides a. Clinical record, 9 August 1979, unreadable; Medical document, 9 January 1979, referring applicant to ear, eyes and nose doctor; and Medical appointment sheet, 17 August 1979, for chronic ringing in both ears pain in each side of throat. b. Health record, 1 August 1979, complaint of tinnitus, vertigo, ears; Health record, 25 June 1979, complaint of ringing in ears; Clinical record, 9 July 1979, Audiology clinic testing reveals bilateral hearing loss; and Health record, 28 June 1979, complaint, hearing loss. c. Official results general educational development test, 18 July 1983, certifying completion of high school diploma equivalency; Associate degree certificate, 6 July 2011, Wake Technical Community College; and Official transcript, wake technical community college, 29 May 2012, awarding associate degree in applied science. d. Letter of support from Ms. JB. Stating the applicant is a one of her best students in her 16 years as a teacher. She has taught his in many of her classes. The applicant received A’s in most of her classes. The applicant displayed organization, commitment and intelligence in the hospitality management program at wake technical community college. e. Cherry hospital employee status verification, 24 October 2012, applicant is employed as a cook II on a permanent status as of 6 November 2012. f. Member access- state employee’s credit union,6 July 2017, indicating FICO score of 770. 3. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army on.11 January 1979 b. He served in Germany from 25 May 1979 to 1 November 1979 c. On 12 September 1979, the applicant was notified by his immediate commander of the proposed discharge under the provisions of Army Regulation (AR) 635-200 (Enlisted Personnel Separations), paragraph 5-31, Expeditious Discharge Program (EDP). The applicant acknowledged the following: * he voluntarily consented to discharge from the United States Army * he may encounter substantial prejudice in civilian life * he was provided the opportunity to consult with counsel * if he declines to accept the discharge voluntarily, he may be subject to separation under other provisions of law or regulation d. Following the acknowledgement, the applicant’s immediate commander initiated discharge proceeding from the Army under the provisions of paragraph 5-31, EDP, AR 635-200 for apathy and inability to adapt to military duty. He recommended a general discharge. e. On 25 September 1979, the separation authority approved the applicant’s discharge under the provisions of AR 635-200 (Personnel Separations), paragraph 5-31, EDP and directed that he receive a general discharge certificate. f. On 5 November 1979, he was discharged under the provisions of AR 635-200, paragraph 5-31, and his characterization is under honorable conditions. His DD Form 214 (Report of Separation from Active Duty) shows that he had 9 month and 25 day active service this period. It also shows he was awarded or authorized the Marksman Marksmanship Qualification Badge (M-16) and Expert Hand Grenade. 4. By regulation, AR 635-200, discharges under this chapter provides that individuals who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army because of the existence of one of more of the following conditions, may be discharged for: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. It also state that 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. 5. .By regulation AR 635-5, (Separation Documents) governed the preparation of the DD Form 214. The DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty. It provides a brief, clear cut record of active duty service at the time of release from active duty, retirement, or 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 warranted. Based upon the grounds used for separation and a lack of rehabilitative measures by the command, the Board concluded there was an injustice which warranted upgrading the characterization of service of the applicant to Honorable. However, the Board determined that changing the narrative reason for separation was not warranted based upon the justification for the separation action. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Honorable. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing the narrative reason for separation. 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. a. Paragraph 5-31 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. 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). 3. Army Regulation 635-5-1 (Separation Program Designators) sets forth the basic authority for the separation narrative reason entered in block 28 of the DD Form 214. a. Paragraph 3, Separation program designator (SPD). The SPD is used in statistical accounting to provide the reason for separation. b. Appendix, separation program designators and authority governing separations: separation program designator JGH is expeditious discharge program (EDP), failure to maintain acceptable standards for retention. 4. Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214. The DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty. It provides a brief, clear cut record of active duty service at the time of release from active duty, retirement, or discharge. The DD Form 214 is not intended to have any legal effect on termination of a Soldier’s service. It states for item 28 (Narrative Reason for Separation), enter the reason for separation (shown in AR 635-5-1) based on the regulatory or statutory. 5. 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 ABCMR Record of Proceedings (cont) AR20170016200 7 1