ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 May 2019 DOCKET NUMBER: AR20180014473 APPLICANT REQUESTS: The applicant requests upgrade of his general discharge under honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Army Discharge Review Board). FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) 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, when he asked for a home loan through the Department of Veterans Affairs (VA), they told him his general discharge made him ineligible. 3. The applicant's service records show: a. After obtaining his parent's written consent, the applicant enlisted into the Regular Army on 3 February 1975 for a 3-year term; he was 17 years old. Effective 3 June 1975, his advanced individual training (AIT) chain of command promoted him to private (PV2)/E-2. After completing AIT, orders assigned him to Fort Ord, CA; he arrived on 24 June 1975. b. On two occasions, while assigned to Fort Ord, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice: * 14 January 1976 – willfully disobeying the lawful order of a sergeant/E-5 by not cleaning the hall and not moving dayroom chairs; punishment included reduction to private (PV1)/E-1; the applicant appealed and, on 10 April 1976, his battalion commander reinstated his rank * 8 June 1976 – failing to go to his appointed place of duty at the time prescribed c. On 11 June 1976, his Fort Ord commander promoted him to private first class (PFC)/E-3. Orders subsequently reassigned him to Korea; he arrived on or about 1 February 1977. e. During his tour in Korea, he accepted NJP twice: * 28 February 1977 – failing to have an Armed Forces Liberty Card in his possession, on 26 February 1977, while being absent in an off-duty status; punishment included reduction to PV2/E-2 * 19 March 1977 – failing to have an Armed Forces Liberty Card in his possession, on 14 March 1977, while being absent in an off-duty status, and failing to report for PT (physical training) formation; punishment included reduction to PV1/E-1 f. On 30 June 1977, the applicant's commander notified him in writing of his intent to separate him under paragraph 5-37 (Expeditious Discharge Program (EDP)), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The commander based this action on his determination the applicant's continued presence in the Army would result in nothing but more conflict with authority; the applicant had received NJP and showed no desire to correct his substandard performance. g. On 1 July 1977, the applicant affirmed he voluntarily consented to the proposed discharge; he also acknowledged he had been given an opportunity to consult with an officer of the Judge Advocate General's Corps. He indicated he was submitting statements in his own behalf, but none are available in his service record. h. On 19 July 1977, the separation authority approved the commander's recommendation and directed the applicant's general discharge under honorable conditions; on 27 July 1977, he was discharged accordingly. His DD Form 214 (Report of Separation from Active Duty) showed he completed 2 years, 5 months, and 25 days of his 3-year enlistment contract. He was awarded or authorized a marksmanship qualification badge. 4. The applicant indicates his upgrade request is based on the VA's denial of his home loan application. The Army implemented the Expeditious Discharge Program so that commanders could separate Soldiers who demonstrated they could not, or would not meet acceptable standards, while relieving units of the administrative burden typically associated with eliminations for cause. Soldiers discharged under this provision had to have completed at least 6, but not more than 36 months of continuous active service, and were required to accept the separation voluntarily. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board discussed his age upon entering service, the length of his service, the nature of his misconduct and the circumstances of his separation. The Board determined that his character of service was too harsh and applied clemency in this case to upgrade his discharge. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period of service ending 27 July 1977 to reflect an Honorable character of service. 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 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) stated an honorable discharge was a separation with honor. Issuance of an honorable discharge was conditioned upon proper military behavior and proficient duty performance. A Soldier's service was to be characterized as honorable based on conduct ratings of at least "Good"; efficiency ratings of at least "Fair"; no general court-martial, and no more than one special court- martial conviction. b. A message-form interim change to AR 635-200, dated 23 June 1975, implemented the Expeditious Discharge Program (EDP) under paragraph 5-37. The EDP was intended to relieve commanders of the administrative burden typically associated with eliminations for cause, and to allow them to remove Soldiers who demonstrated they could not, or would not meet the acceptable standards. Eligible Soldiers had to have completed at least 6, but not more than 36 months of continuous active service, and were required to voluntarily accept this discharge. Soldiers approved for EDP separation could receive either an honorable or general discharge. With the interim change, commanders in the grade of lieutenant colonel/O-5 were given the authority to approve EDPs. 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 on the basis of 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.