ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 May 2019 DOCKET NUMBER: AR20170019816 APPLICANT REQUESTS: ? an upgrade of his under other than honorable discharge to honorable ? change the narrative reason for separation to reflect "pursuant to Army Regulation (AR) 635-200, paragraph 13-5a(3)(b)" ? add the initiation of separation proceedings under the Expeditious Discharge Program and the self-authored statement in his official record APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: ? DD Form 149 (Application for Correction of Military Record) ? Commander's recommendation memorandum, subject: Expeditious Discharge Program Report Control Symbol CSG PA-1262 (Test), dated 27 November 1975 ? Acknowledgement memorandum, dated 27 November 1975 ? Self-authored statement submitted during time of discharge proceedings 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 effect: a. The complete record surrounding the recommendation for general discharge was not submitted to his official file, namely the initiation of discharge under the Expeditious Discharge Program and the self-authored statement he submitted on his own behalf on 27 November 1975. b. In order to correct the previously stated errors, the three pages should be placed in his military personnel file. This error caused him to be unjustly discharged under AR 635-200 (Personnel Separations - Enlisted Personnel), paragraph 13-5a(1). Had the documents been included in the record, he would have been eligible to be discharged under AR 635-200, paragraph 13-5a(3)(b), pursuant to United States Army Europe (USAREUR) Circular 600-85, paragraph 8a(1) [self-admitted current abuse] and paragraph 8a(2) [Illegal possession]. c. Lastly, had all the documents been submitted, he may have been afforded a rehabilitative transfer as he requested in his written statement. 3. The applicant provides: a. Commander's notification of initiation action of discharge under the Expeditious Discharge Program Report Control Symbol CSG PA-1262 (Test), dated 27 November 1975. b. Applicant's acknowledgement of notification of separation under the Expeditious Discharge Program, RCS CSG PA-1262 (Test), dated 27 November 1975. c. Applicant's self-authored statement states, in effect: (1) He does not wish to be discharged. He does not want to go home in disgrace, but rather be transferred to either A Battery in Spangdahlem or to B Battery in Bittburg. He also states that the C Battery G.I.s (government issued) do not like him. (2) While on guard duty on 28 November 1974, he was beaten up but nothing was ever done about it. On 3 May 1975, he was caught with some hash while he was on guard duty. In addition to receiving an Article 15, the sergeant of the guard that night got upset with him because he made the sergeant look bad. (3) He owes lots of money for the drugs he received. Further stating that he really needs help with trying to stop doing drugs. He admitted to doing heroine and getting caught with some needles in February 1975, which he got in trouble for. (4) If he cannot get transferred to one of the other Batteries, he requested to be sent to CDAAC so he can get the help he needed for his drug problem. 4. Review of the applicant's service records show: a. He enlisted in the Army on 26 June 1974. b. DD Form 1569 (Incident/Complaint Report), dated 23 February 1975, reflects the applicant was one of two subjects identified in a theft of a private motor vehicle (PMV)/driving with the influence (DWI)/PMV accident resulting in personal injuries/leaving the scene of a PMV accident, breaking and entering (theft) (3 counts), and forgery. a. c. Commander's Report of Disciplinary Action Taken, dated 20 March 1975, reflects the applicant had requested a chapter 10 dismissal with a general discharge certificate, but was still considered for special courts martial. d. He accepted nonjudicial punishment (NJP) on 21 March 1975, for stealing a passenger car and a pioneer cassette car stereo on 23 February 1975, violate USAREUR Regulation 632-10 by failing to notify military police immediately after an accident resulting in personal injury in which he was involved in on 23 February 1975, and for wrongfully having in his possession one hypodermic needle. He was reduced to PVT/E-1. e. He accepted NJP on 7 May 1975, for wrongfully having in his possession a pipe containing residue, more or less, of marijuana in the hashish form and for wrongfully having in his possession one gram, more or less, of marijuana in the hashish form on 3 May 1975. f. Commander's statement, regarding the field grade article 15 the applicant received on 3 May 1975, states: (1) The chain of events that transpired during the early morning hours of 3 May 1975. The applicant had never received a positive urinalysis for the use of illegal drugs since his arrival to the unit, nor has he been directly involved in any other incident involving the use, sale or possession of illegal drugs. (2) He is not aware of the reason the applicant was not referred to the CDAAC (Community Drug and Alcohol Abuse Center) Program as a result of his possession and he believes it to be an administrative oversight on the part of the previous commander. g. On 27 November 1975, the applicant's immediate commander notified the applicant of his initiation of separation action against him under the provisions of letter, Headquarters, Department of the Army, Subject: Expeditious Discharge Program Report Control Symbol CSG PA-1262 (TEST), dated 20 August 1973. He recommended that the applicant be furnished a general discharge certificate. h. The applicant acknowledged receipt of the commander's notification of and did not voluntarily accept discharge from the U.S. Army. He elected to submit a statement on his own behalf. He acknowledged he: * understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * he was provided the opportunity to consult with a Judge Advocate Officer * understood that if he declines to voluntarily accept this discharge, he may be processed for separation under the provisions of chapter 13, AR 635-200 * he understood that he may, up until the date the discharge authority approves his discharge, withdraw his acceptance of this discharge * i. DA Form 4126-R (Bar to Enlistment/Reenlistment Certificate), dated 11 February 1976, reflects the applicant's conduct and efficiency was unsatisfactory. Further indicating the applicant had not made a significant contribution to the unit or the Army and he lacked the initiative and desire to perform his duties; therefore, his lack of motivation and his inability to adjust to military had made him ineligible for continued service. j. Army Europe (AE) Form 113-1 (Notice of Initiation of Elimination Proceedings), dated 4 March 1976, reflects the applicant's immediate commander notified the applicant of his intention to initiate action to effect his discharge from the U.S. Army, pursuant to the provisions of paragraph 13-5a(1), AR 635-200) for unfitness. k. On 4 March 1976, the applicant acknowledged receipt of the commander's intent to separate him. He indicated on section II of AE Form 113-1, he has previously been counseled regarding the type of discharge he may receive. l. AE Form 113 (Recommendation for Elimination Under Provisions (UP) Chapter 13, AR 635-200), dated 4 March 1976, reflects the applicant's immediate commander: (1) Recommended that the applicant be eliminated from the service before the expiration of his term of service for unfitness, specifically for frequent incidents of a discreditable nature with civil or military authorities. (2) The applicant was not given a rehabilitative transfer as prescribed in paragraph 13-5, AR 635-200 because further duty would have created serious disciplinary problems and a hazard to the military mission. In addition, indicating the applicant was obviously resisting all attempts to rehabilitate and rehabilitation would not produce the quality Soldier acceptable in the baseline force. m. He accepted NJP on 26 March 1976, for violating a lawful general order by operating a motor vehicle without a valid operator's license on 20 March 1976. He was reduced to PVT/E-1. n. On 29 April 1976, the separation authority approved the applicant's discharge under the provisions of AR 635-200, chapter 13, for unfitness, and issued an Undesirable Discharge Certificate. The applicant was reduced to private/E-1 and discharged accordingly on 13 May 1976. o. His DD Form 214 confirms he was discharged on 13 May 1976, for unfitness, Separation Program Code (SPD) JLB, under the provisions of AR 635-200, paragraph 13-5a(1), with his service characterized as under other than honorable conditions. He completed 1 year, 10 months, and 27 days of total service for pay. 5. By regulation (AR 635-200), prescribes the procedures for the administrative separation of enlisted personnel. Chapter 13, in effect at that time, applied to 1. separation for unfitness and unsuitability. An under other than honorable conditions characterization for service was considered appropriate. 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 a pattern of misconduct over an extended period of time and a lack of documentary evidence to show that the separation authority was currently an error, the Board concluded that the characterization of service and the separation authority currently reflected on the applicant’s DD Form 214 accurately reflects the circumstances that led to discharge and that no error, injustice or clemency 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. 5/13/2019 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), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability. Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 3. The Department of the Army began testing the Expeditious Discharge Program in October 1973. In a message, dated 8 November 1974, the Deputy Chief of Staff for Personnel announced the expansion of the Expeditious Discharge Program. The program provided for the separation of Soldiers whose acceptability, performance of duty, and/or potential for continued effective service fell below the standards required for retention in the Army. Soldiers could be separated under this program when subjective evaluation of their commanders identified them as lacking qualities for continued military service because of attitude, motivation, self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. An honorable or general discharge was required and there has never been any provision for an automatic upgrade of a discharge less than fully honorable. 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. 1. 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.