ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 April 20109 DOCKET NUMBER: AR20180015461 APPLICANT REQUESTS: an upgrade of her general, under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * United Services Automobile Association (USAA) email 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 she does not have access to certain benefits because of her current discharge. She is an upstanding citizen with no criminal history. She was turned down for USAA insurance because they do not accept members with a general, under honorable conditions character of service. She is a patriotic natural citizen of the United States of America. 3. On 27 January 1978, the applicant enlisted in the Regular Army. 4. On 1 May 1978, while attending advanced individual training, she accepted non- judicial punishment (NJP) for not securing her wall locker at all times when leaving her room. 5. On or about 17 November 1978, after completing AIT, she was assigned to Germany. 6. On 16 February 1979, the applicant acknowledged that she understood her obligations and would take the steps necessary to provide an adequate dependent care plan. She also acknowledged that she understood the consequences if she failed to do so. 7. A review of the applicant’s record revealed counseling on multiple occasions for: * spending a lot of time away from work because of childcare issues and taking care of personal business * her job performance * wear and appearance of her uniform * problems with childcare * wanting out of the Army 8. In February 1980, she accepted NJP for failing to be at her appointed place of duty on 2 occasions and not being in the appropriate uniform. 9. On or about 11 February 1980, the applicant’s commander notified her of his intent to initiate action to discharge her under the provisions of paragraph 5-34 (Expeditious Discharge Program), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The reasons for his proposed action were the applicant’s inability to adapt to the requirements of military service and her repeated absenteeism and tardiness due to parenthood. She had the right to decline this discharge. a. The applicant consulted with legal counsel and was advised of the basis for the contemplated action to separate her and the rights available to her. b. She voluntarily consented to this discharge. She did not submit statements in her own behalf, and acknowledged that she understood that if issued a General Discharge Certificate, she may expect to encounter substantial prejudice in civilian life. c. The applicant’s chain of command recommended approval of her separation with the issuance of a General Discharge Certificate. d. The separation authority approved the applicant’s discharge and directed the issuance of a General Discharge Certificate. 9. On 8 April 1980, the applicant was accordingly discharged. She completed 2 years, 2 months, and 12 days of net active service and was given a separation code of JDG (parenthood). She was not awarded a personal decoration. 10. The record contains no indication of administrative procedural or other errors that would tend to have jeopardized the applicant’s rights. 11. Army Regulation 635-200, chapter 5, paragraph 5-34 prescribes procedures for separation because of an inability to perform prescribed duties, repetitive absenteeism or non-availability for worldwide assignment as a result of parenthood. The regulation also provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 12. In reaching its determination, the Board should consider the applicant's petition, her service record, and her statements in light of the published Department of Defense guidance on equity, injustice, or clemency. 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. She 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): 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 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) set forth the basic authority for the separation of enlisted personnel. a. Chapter 5 (separation for the convenience of the government), paragraph 5-31 (expeditious discharge program (EDP)) 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 may be discharged under the EDP. It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary. No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge. Issuance of an honorable discharge was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade and general aptitude. b. Paragraph 5-34 (inability to perform prescribed duties due to parenthood) provided that Soldiers were subject to separation because of an inability to perform prescribed duties, repetitive absenteeism or non-availability for worldwide assignment as a result of parenthood. When it has been determined that separation is appropriate for any of the reasons indicated, the member will be notified in writing by his immediate commander that his separation has been recommended pursuant to this paragraph and will be given the specific basis for the proposed action. If a characterization of service "under honorable conditions" is recommended he will be allowed not less than 48 hours to consult with an appointed counsel for consultation 3. Army Regulation 635-200 also states that: a. 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. A general discharge is a separation from the Army under honorable conditions if an individual's military record was not sufficiently meritorious to warrant an honorable discharge. 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. a. 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. b. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180015461 3 1