ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 May 2019 DOCKET NUMBER: AR20170019001 APPLICANT REQUESTS: Upgrade his general discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge) 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 wishes to have his discharge upgraded to honorable. He was young and trying to deal with divorce and personal problems, and becoming a new father. He has since grown up and raised a family and became a decent contributing member to his community and this discharge has bothered him for years and he doesn’t feel he deserves a less than honorable discharge. 3. A review of the applicant’s record shows: a. He enlisted in the Regular Army on 2 September 1980. b. On 21 August 1981, he accepted non-judicial punishment (NJP) for disorderly conduct. c. On 31 August 1981, he accepted NJP for willfully disobeying the orders of a superior officer. His punishment included reduction to private (E-2) suspended until 20 February 1982, restriction, and extra duty. d. On 28 May1982, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against the applicant under the provisions of paragraph 5-31 (4) & (5) (Expeditious Discharge Program (EDP)) of Army Regulation (AR) 635-200 (Personnel Separations). a. e. On 31 May 1982, the applicant requested a medical examination in accordance with paragraph 1-31a, AR 635-200, and on 1 June 1982, he acknowledged receipt of the commander's notification and did not consent to this discharge. He acknowledged: * he was advised of the basis for the contemplated separation action under the provisions of paragraph 5-31, AR 635-200 * he was advised of the effect on future enlistment in the Army, the possible effects of a general discharge and of the procedures and rights that were available to him * 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 * he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life f. On 14 June 1982, he received a Bar to Reenlistment Certificate for non-judicial punishment (NJP), and indebtedness. g. On 24 June 1982, the applicant’s medical exam showed his job related behavior did not appear to have improved despite resolution of his martial conflict. The doctor recommended an administrative discharge. h. On 28 June 1982, the command recommended approval of separation. The separation authority approved the applicants discharge under AR 635-200, paragraph 5-31 and directed the applicant be furnished a General Discharge Certificate. His character of service is Under Honorable Conditions. i. On 9 July 1982, the applicant was discharged under honorable conditions under the provisions of AR 635-200 paragraph 5-31. His DD Form 214 shows he completed 1 year, 10 months, and 8 days of active service. He was awarded or authorized the Army Service Ribbon and the Expert Marksmanship badge. 4. By regulation, individuals discharged under the EDP may be awarded an honorable or general discharge as appropriate. 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. 1. 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 short term of service completed prior to a pattern of misconduct and a lack of character evidence to show tht the applicant has learned and grown from the events leading to 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. 5/16/2019 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 (AR) 635-200 Personnel Separations-Enlisted Personnel, in effect at the time, sets for the basic authority for separations 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 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 a general, except when discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. 3. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. 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. 4. 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 1. 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.