ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 23 April 2019 DOCKET NUMBER: AR20180014893 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 20 September 2007, with self- authored statement FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); 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, his discharge should be upgraded because he has been a law abiding citizen and he feels he is deserving of an honorable discharge. He became a father, acquired custody of his 3 children at a young age due to divorce, and has supported them by owning his own business for over 20 years. 3. The applicant enlisted in the Regular Army on 28 December 1979. 4. The applicant’s commander directed that he undergo a mental status evaluation on 5 March 1981, due to his high frequency of negative counseling. The medical provider's evaluation summary found that the applicant had no psychiatric disorder, demonstrated ineptness, poor attitude, lack of motivation, lack of self-discipline, inability to adapt and failure to demonstrate promotional potential. The examiner recommended the applicant's separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program). 5. The applicant accepted nonjudicial punishment (NJP) on 30 November 1981, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully soliciting another Soldier to possess one-quarter pound, more or less, of marijuana and for wrongfully possessing one ounce, more or less, of marijuana, on or about 8 July 1981 at Fort Bragg, North Carolina. 6. The applicant’s service record contains a formal statement of counseling from his commander showing he was counseled on at least 12 separate occasions between September 1980 and August 1981, for various reasons including but not limited to, disobeying a lawful order, missing formation, failure to report, and disrespect. 7. The applicant's immediate commander notified the applicant on 8 December 1981 that he was initiating separation actions under the provisions of Army Regulation 635-200, paragraph 5-31. The applicant's commander advised him of the rights available to him and of the effect of any action taken by him to waive his rights. 8. The applicant acknowledged receipt of the proposed separation memorandum and further acknowledged that he may encounter substantial prejudice in civilian life if he received a under other that honorable conditions discharge. He voluntarily consented to the separation on 8 December 1981. 9. The applicant's commander formally recommended his separation from service under the provisions of Army Regulation 635-200, paragraph 5-31, based on his continued failure to meet acceptable standards for continued military service. 10. The applicant consulted with counsel from the Office of the Judge Advocate General's Corps on 10 December 1981 and was advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, paragraph 5-31, for continued failures to meet acceptable standards for continued military service. He was further advised of his right to: * he waived representation by counsel * submit statements in his own behalf, [he did not make any statements on his own behalf] * obtain documents to be presented to the separation authority * waive any of these rights * withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge 11. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 16 December 1981 and directed that his service be characterized as general, under honorable conditions. 12. The applicant was discharged on 13 January 1982, in the rank/grade of private/E-1. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31, and his service was characterized as under honorable conditions (general). Item 28 (Narrative Reason for Separation) of his DD Form 214 contains the entry "Expeditious discharge program – failure to maintain acceptable standards for retention." 13. In reaching its determination, the Board should consider the applicants statement 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 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): N/A 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 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 5 provided for the EDP. The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential could be discharged under the EDP. It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary. Soldiers had to consent to separation under this program in order for commanders to separate them under the provisions of the EDP. Otherwise, a commander was required to separate Soldiers under other provisions of the regulation, which in most cases resulted in an under other than honorable conditions discharge. Individuals discharged under this provision of the regulation were issued either a general or honorable discharge. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. 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, Boards 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. b. 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) AR20180014893 2 1