ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 September 2019 DOCKET NUMBER: AR20170016758 APPLICANT REQUESTS: an upgrade of his general under honorable conditions discharge to an honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Veterans Affairs Statement in Support of Claim Form 21-4138 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 AR20070013302 on 13 February 2008. 2. The applicant states: a. He was ordered to sign the documents pertaining to his court-martial, but was not given the opportunity to read what it said. He was taken advantage of, by reason of his age (19) and he was not advised that he could get a lawyer to contest the discharge. Furthermore, all African American Officers and Enlisted men were treated with prejudice during the entire Vietnam conflict. He was given an ultimatum to accept the general discharge under honorable conditions or be court-martialed. b. He did not know what he had agreed to by signing the papers. After he signed the paperwork, he had to run 3 miles without frequent stops. During the run, the battalion commander ordered him to keep up with the company. The next morning he had to repeat the run. He learned that there was rampant discrimination against all African Americans. His discharge was executed by the battalion commander, after it was determined that if he could not run 3 miles he should be discharged. 3. The applicant provides Form 21-4138 a statement in support of his claim. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 30 August 1974. b. He accepted nonjudicial punishment on/for: * 9 January 1975, for without authority absent himself from his unit on or about 6 January 1975 until on or about 8 January 1975 * 17 June 1975, for failure to be at his appointed place of duty c. On 3 July 1975, his immediate commander advised him that he was initiating actions to separate under the provisions of Army Regulation 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. d. The applicant’s record is void of the separation authority approval for the Board to review. However, his DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 25 August 1975, under the provisions of Army Regulation 635- 200 (Personnel Separations), paragraph 5-37 (EDP). He completed 11 months and 26 days of net active service. He was awarded or authorized the National Defense Service Medal. e. On 13 February 2008, the Army Discharge Review Board denied the applicant’s request for an upgrade. 5. In regards to the applicant’s request for an appearance before the Board, AR 15-185 (Army Board for Correction of Military Records (ABCMR)) states ABCMR members will review all applications that are properly before them to determine the existence of an error. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 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 after a pattern of misconduct and was provided an under honorable conditions (General) characterization of service. Based upon the short term of honorable service completed prior to a pattern of misconduct leading to separatin, 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. X CHAIRPERSON Signed by: 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 forth the basic authority for the separation of enlisted personnel. a. A 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. b. 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 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 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//