ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  29 April 2019

	DOCKET NUMBER:  AR20180015519


APPLICANT REQUESTS:  His under honorable conditions (general) discharge be upgraded to an honorable discharge, and his correction of his DD Form 214 (Report of Separation from Active Duty) to show his narrative reason for separation was "Secretarial Authority." 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) with personal statement
* DD Form 214, for the period ending 5 May 1976

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 he was given a command to leave Germany to save his marriage, his pregnant wife was having trouble adjusting to life in Germany.  This order prevented him from completing his last year of service and resulted in his general discharge. 

3.  The applicant enlisted in the Regular Army on 26 June 1974. 

4.  The applicant received nonjudicial punishment (NJP), under Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions for the indicated offenses:

* on 14 January 1976, for disorderly conduct, disobeying a lawful order from a noncommissioned officer (NCO), and assault on an NCO (two specifications), on or about 17 and 18 November 1975 
* on 22 March 1976, for disorderly conduct and disobeying a lawful order of an NCO, on or about 22 March 1976

5.  The applicant's unit commander notified the applicant on 6 April 1976 that he was initiating actions to separation him under the provisions of Army Regulation 635-200, paragraph 5-37 (Expeditious Discharge Program (EDP)).

6.  The applicant acknowledged the proposed separation memorandum on 14 April 1976 and voluntarily consented to the separation.  He acknowledged he had been advised of and understood his rights, that if his service was characterized as general, under honorable conditions, he could expect to experience substantial prejudice in civilian life, that there is no automatic review or upgrading of his discharge, and he could not apply for reenlistment for two years.  He provided a statement in his own behalf wherein he stated he had expected to serve in an infantry unit but was sent to a missile unit to act as a security guard.  This action was demoralizing as he was not serving in the field he was trained for. 

7.  The applicant's commander formally recommended his separation from service under the provisions of Army Regulation 635-200, paragraph 5-37, under the EDP. The separation authority approved the recommended discharge on 22 April 1976, under the provisions of Army Regulation 635-200, paragraph 5-37 and directed the applicant receive a general discharge.

8.  The applicant was advised on 5 May 1976 that his reason and narrative reason for separation was "Failure to maintain acceptable standards for retention (EDP)."

9.  The applicant was discharged on 5 May 1976.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-37, and his separation program designator (SPD) was "KMN" (EDP).  His service was characterized as under honorable conditions (general).  

10.  The Army Discharge Review Board denied the applicant's request for an upgrade of his character of discharge on 16 November 1976 and again on 30 October 1978.

11.  The Board should consider the applicant's 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 board applied Office of the Secretary of Defense standards of liberal consideration to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the Board agreed that the applicant’s discharge characterization is appropriate for 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 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 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Paragraph 3-7a provides that 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 provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.
   
   c.  Paragraph 5-3 states separation under this paragraph is the prerogative of the Secretary of the Army.  Secretarial plenary separation authority is exercised sparingly and seldom delegated.  Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army.  Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee.
   
   d.  Paragraph 5-37, as then in effect, provided for separation under the EDP.  This program provided that an individual who had completed at least six months but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that he could not or would not meet acceptable standards could be separated.  Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to consult with legal counsel.  The SPD "KMN" was the appropriate designator for discharge under this program.
   
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.


ABCMR Record of Proceedings (cont.)	 AR20180015519
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