ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  15 July 2019

	DOCKET NUMBER:  AR20180011215


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Two Character Statements

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:  

     a.  At the time of his discharge he was young and thought he knew everything.  When was asked if he wanted an Expeditious Discharge Program (EDP) release from the Army, he agreed.  He was told that he would receive a under honorable condition discharge and the company commander stated that this type of discharge was not bad, that he would have the same privileges as if he had received an honorable discharged.  

     b.  Recently he was made aware that there is a big difference in the two.  He is seeking veteran affairs benefits and was told that his discharge would hinder his ability to receive all of the benefits he’s entitled to if he had an honorable discharge.  

3.  The two character statements in part, states the applicant was a very up front person and spoke up when things were unfair.  In their type of work integrity played a big role and teamwork was a must, he was always a team player and willing to help anyone and always treated everyone with respect.  His integrity and honesty showed to all his co-workers that he was a truthful man.  He always went the extra mile to make sure the job was done correctly and by the required procedures.  His dedication to stepping up and helping out his co-workers was impeccable.  
4.  A review of the applicant’s service record shows:  

	a.  He enlisted in the Regular Army on 9 January 1976.

	b.  He received nonjudicial punishment on: 

* 27 April 1976 for disobeying a lawful order.  
* 17 August 1976 he wrongfully gave a meal pass to a Soldier with the intent to defraud  
* 8 November 1976, absent without leave (AWOL) on 8 November 1976
* 30 November 1976, AWOL on 31 October 1976
* 10 May 1977, AWOL on 26 April 1977, and failed to obey an lawful order, his punishment in part reduction to E-1, suspended
* 7 May 1977, failed to be at the appointed place of duty on 5 to 6 May 1977, the suspension of punishment of reduction to E-1 imposed on 10 May 1977 was vacated

	c.  A Bar to Reenlistment was approved on 3 January 1977 for nonjudicial punishments of three incidents of AWOL, failing to be at the appointed of duty and for disobeying a lawful order.  

	d.  On 11 May 1977, the applicant was notified by the immediate commander of the proposed discharge under the provisions of AR 635-200 (Enlisted Personnel – Personnel Separations), paragraph 5-31, EDP for nonjudicial punishments, a civil offense of possession and sale of drugs, and he failure to demonstrate motivation after several counseling.  

	e.  On 8 November 1978, after consulting with counsel on the basis for contemplated separation and its effects, the rights available to him and the effects of waiver of his rights, the applicant acknowledged:  

* he had the right counsel and to submit a statement, he submitted a statement on his own behalf  
* if he declined to accept the discharge voluntarily, he may be subject to separation under other provision of law or regulation
* action will be taken to recopy any unearned portion of enlistment or reenlistment bonuses received
* he may be deprived of his rights and benefits of a Veteran under both Federal and State laws he may expect to encounter substantial prejudice in civilian life because of an other than honorable conditions

	f.  The applicant’s self-authored statement says, in part that because of the situation concerning pending state criminal charges against him (of which he was confident he would be cleared) he was under mental strain and pressure.  He was a church going young man and very involved.  He grew up believing in, do unto others as you would have them do unto you.  He still believed that way, but trying to live like that offers a lot of mental anguish being in the Army, due to the fact that many people are out to do for themselves, no matter what they have to do to obtain their goals, whether it be intentional or not.  He performed his duties to the fullest extent possible at the time and had considered making the Army a career at one time.  He joined the Army as a non-graduate, and within his first month he received his high school diploma.  He felt that because of his record of service in the hospital, he should have received an honorable discharge.  His dress and appearance was always in proper perspective.

	g.  Following the acknowledgement, the applicant’s immediate commander initiated discharge proceeding on 19 May 1977, under the provisions of paragraph 5-31, EPD, AR 635-200, due to lack of motivation and inability to adjust to military life.  He recommended a general discharge and cited the specific reasons:

	h.  The applicant underwent a medical examination on 23 May 1977 and the examiner qualified him for retention/separation.  

	i.  Consistent with the chain of command recommendation, on 31 May 1977, the separation authority approved the applicant’s discharge under the provisions of paragraph 5-31, EDP, AR 635-200, for failure to meet acceptable standards for the continued active service and directed that he receive a general discharge certificate.

	j.  The applicant was discharged from Army on 3 June 1977.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of paragraph 5-31, EDP, AR 635-200, SPD (JGH) for failure to maintain acceptable standards for retention, and his service characterization is under honorable conditions.  He completed a period of 1 year, 4 months, and 20 days of active service.  He had 3 days of lost time.  

5.  By regulation 635-200, paragraph 1-13b a general discharge is a separation 
from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

6.  By AR 635-5-1 (Personnel Separations-Separation Program Designators) states that the separation program designator (SPD) code is used in statistical accounting to represent the reason for separation.  

7.  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 and letters of support 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 was discharged for a lengthy pattern of misconduct and was provided an under honorable conditions (General) characterization of service.  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.

	 
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.  AR 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel.  

	a.  Chapter 5-31, states that the expeditious discharge program is for 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 1-13a, (Honorable discharge) states an honorable discharge is a 
separation with honor.  Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude.  

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)	 AR20180011215


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