ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  29 May 2019

	DOCKET NUMBER:  AR20170018781


APPLICANT REQUESTS:  an upgrade of his under honorable conditions (general) to honorable

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Report of Separation from Active Duty)

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 in the second week of June 1974, he was participation in a field training exercise with his unit in Germany.  He had been planning to return to the United States (US) for his wedding at the end of the field exercise.  During the field training exercise the applicant inquired about the status of his leave request to return to the US for his wedding.  He was told by his captain that his leave was not approved.  Upon returning from the field exercise, the applicant went home for his wedding, as thousands of dollars had already been spent.  He returned to his unit in Germany immediately in lieu of his honeymoon and was court martialed upon his return.  The applicant states he believes his record is unjust because his leave had been granted before all the arrangements were made by his fiancé and money was spent.  It was too late to cancel and his captain knew this and knew what he had to do.  He states not only was he court-martialed, reduced in rank, he was then sent home with an under honorable conditions discharge six days before his day to be discharged from the armed services.
3.  A review of the applicant’s service records shows:

	a.  He was inducted into the Army of the United States on 3 August 1972.

	b.  He served in Germany from 27 February 1973 to 25 July 1974.
	c.  He accepted nonjudicial punishment under Article 15 on/for:

* 8 November 1973, for failing to go to his appointed place of duty
* 18 December 1973, for wrongfully and unlawfully possessing marijuana and violating lawful general order by possessing a blade in excess of 3 inches; his punishment included a reduction to private/E-2
* 7 March 1974, for unlawfully and wrongfully possessing marijuana in the hashish form; his punishment included reduction to E-2

  d.  He was barred to reenlistment on 21 January 1974.

	e.  On 26 April 1974, his immediate commander notified the applicant of his intent to discharge him under the provisions of the Expeditious Discharge Program.  The reason for his proposed action is the applicant had shown several incidents of misconduct and punishment under uniform code of military justice (UCMJ).

	f.  On 30 April 1974, he acknowledged receipt of the proposed separation.  He voluntarily consented to this discharge and indicated that he understood:

* if he was furnished a general discharge ,he may expect to encounter substantial prejudice in civilian life
* he had the opportunity to consult with legal counsel
* If he declined to voluntary accept the discharge, he may be processed for separation under the provisions of Chapter 13 AR, 635-200
* he waived his rights to submit a statement on his own behalf

   g.  The commander initiated separation action against him.  The chain of command recommended approval. 

	h.  On 22 May 1974, consistent with the chain of command's recommendation, the separation authority approved the applicant's discharge under the Expeditious Discharge Program, Separation program Designator 775 (unsuitability, apathy) with an under honorable conditions (general) characterization of service. 

	I.  On 3 July 1974, the applicant was convicted by summary court martial for being absent without leave (AWOL) from 12 June 1974 to 20 June 1974.  He was reduced to private/E-1.

	j.  On 27 July 1974, the applicant was discharged from active duty with a general, under honorable conditions.  His discharge orders issued under the authority of AR 635-200.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of DA Message DAPE-MPE-PS, DTG0620006Z Jun 74 SPD KMN (Expeditious Discharge Program).  He completed 1 year, 11 months, and 17 days of active service, with 8 days of lost time.  It also shows he was awarded or authorized National Defense Service Medal and Expert Marksmanship Qualification Badge with Rifle Bar. 

4.  By regulation, an expeditious discharge is for individuals who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army.

5.  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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief.  Based upon the relatively short term of service completed prior to a pattern of misconduct, as well as the lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to his discharge, 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 – Enlisted Personnel) in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  Paragraph 5-37 states that an expeditious discharge is for 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 or more of the following conditions, may be discharged:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.

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)	 AR20170018781


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