ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 June 2019 DOCKET NUMBER: AR20180011815 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) 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. A review of the applicant’s service record shows: a. Having had prior service in the Army Reserves Delay Entry Program, he enlisted in the Regular Army on 16 October 1979. b. He received a counseling statement on 20 January 1982 for missing formation. c. He received nonjudicial punishment on 30 April 1982 for willfully disobeying a lawful order and striking a superior noncommissioned officer (NCO). His punishment was in part reduction to E-2. d. 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, Expeditious Discharge Program (EDP) on 26 May 1982. e. The applicant’s immediate commander initiated discharge proceeding from the Army under the provisions of paragraph 5-31, EPD, AR 635-200 on 26 May 1982. He recommended a under honorable conditions discharge and cited the specific reasons missing formation, poor duty performance, disobeying a lawful order, striking an NCO, and communicating a threat. f. On 27 May 1982, the applicant acknowledged: * he had the right counsel and to submit a statement, he elected not to submit a statement on his own behalf * if he declined to accept the discharge voluntarily, he may be subject to separation under other provisions 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 g. Consistent with the chain of command recommendation, on 27 May 1982 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 for: lack of motivation, lack of self-discipline, lack of promotion potential, and poor attitude. He directed that he receive a general discharge certificate. h. The applicant was discharged from Army on 30 November 1978. His DD Form 214 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, general. He completed a period of 2 years, 7 months, and 19 days active service this period and 1 months 4 day prior service. He had no lost time. 4. By regulation 635-200, paragraph 1-13b (General Discharge) states 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. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. The member may have had frequent nonjudicial punishments but not for serious infractions. He may be a troublemaker, but his conduct is not so bad as to require discharge for cause or a discharge under less than honorable conditions. When a member's service is characterized as general, except when discharged by reason of unsuitability, misconduct, homosexuality, or security, the specific basis for such separation will be included in the member's military personnel record. 5. 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. 6. The applicant applied to the Army Discharge Review Board (ADRB) and after careful consideration of his military records and all other available evidence, the ADRB found his discharge proper and equitable, and denied his request. 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 there is insufficient evidence to grant relief. 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. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 provisions 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 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 5-31 of 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. Interim Change 4 to AR 635-200, dated 1 April 1982, eliminated the requirement to obtain the Soldier's consent for separation under the provisions of the Expeditious Discharge Program. b. Paragraph 1-13a (1) (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. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. 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) AR20180011815 4 1