ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 April 2019 DOCKET NUMBER: AR20180015626 APPLICANT REQUESTS: The applicant requests his general under honorable conditions 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) in lieu of DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) 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 he would like his discharge upgraded in order to receive more Veteran benefits. 3. On 5 September 1972, at the age of 19 years old and with a 10th grade level education, the applicant enlisted in the Regular Army. On 22 February 1973, after completing advanced individual training, the applicant was assigned to his first permanent duty assignment, which was an overseas assignment in the Republic of Korea. 4. A review of his record shows he accepted nonjudicial punishment (NJP) on: * 24 May 1973 for failing to go at the time prescribed to his appointed place of duty * 27 September 1973 for failing to go at the time prescribed to his appointed place of duty on four occasions * 26 October 1973 for disobeying an order from his superior commissioned officer, being absent without leave (AWOL) from 22 October 1973 to 23 October 1973, and failing to go at the time prescribed to his appointed place of duty * 4 September 1974 for failing to go at the time prescribed to his appointed place of duty on three occasions * 25 September 1974 for being derelict in his duty by arriving one hour fifteen minutes late, out of uniform, and needing a shave and a haircut (the applicant signed the form without indicating if he demanded trial by Court-Martial) * 19 March 1975 for possessing marijuana 5. On 12 March 1974, he was convicted by special court-martial on two specification of AWOL from 27 December 1973 to 7 January 1974 (AWOL for a total of 11 days) and from 9 February 1974 to 14 February 1974 (AWOL for a total of 5 days). He was sentenced to confinement with hard labor for 80 days. On 4 April 1974, the convening authority approved the sentence and ordered it executed. The case was reviewed by the Office of the Staff Judge Advocate, 2nd Infantry Division, Korea, and found to be correct in law and fact. 6. On 19 March 1976 the applicant accepted NJP for wrongfully having in his possession one ounce, more of less of marijuana. He was to be reduced to the pay grade of PV1, suspended for 30 days, forfeiture of pay ($50) for 30 days and 10 days of extra duty and restriction. 7. His record contains an enlisted qualification record which shows in: * Item 33 (Appointments and Reductions): * 5 January 1973, promoted to private two (PV2)/E-2 * 4 April 1974, reduced to private one (PV1)/E-1, Authority SPCMO Number 33 * 10 July 1974, promoted to PV2 * Item 38 (Record of Assignments): service in Korea from 14 February 1973 to 12 March 1974 (i.e., 1 year and 27 days minus 16 days AWOL, total credit time 1 year and 11 days) * Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal, Date ETS (Expired Term of Service): Imprisonment from 12 March 1974 to 16 May 1974 for 66 days 7. On 26 April 1984, the applicant’s immediate commander notified him he was initiating separation actions against him under the provisions Headquarters, Department of the Army, DAPE_MPE-PS, subject: Expeditious Discharge Program, RCS CSG PA- 1262 (Test), dated 20 August 1973, which was under of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations), paragraph 5-37, discharge for failure to demonstrate promotion potential. 8. The applicant acknowledged he had been notified of the pending separation action against him and the basis for the contemplated action to separate him and stated he voluntarily accepted discharge from the U.S. Army. He elected not to submit statements on his own behalf. 9. On 27 May 1975, the intermediate commander recommended approval of the recommendation for separation and on 29 May 1975, the appropriate commander approved the recommendation for separation, directing the applicant be issued a General Discharge Certificate. 10. On 11 June 1975, the applicant was discharged accordingly. His service was characterized as an under honorable conditions (general) discharge. He completed 2 years, 6 months, and 15 days of net active service with 1 month and 11 days foreign service; however, his enlisted qualification record shows he was in Korea for 1 year and 11 days minus the time he lost for AWOLs. His DD Form 214: * His rank/grade as PV1/E-1, with a date of rank as 6 May 1975 * He was awarded or authorized: * National Defense Service Medal * Armed Forces Expeditionary Medal - Korea * Overseas Service Ribbon * M16 Rifle Marksman Marksmanship Qualification Badge * Grenade Expert Marksmanship Qualification Badge * Time Lost: 103 days 11. The applicant requests an upgrade so that he may receive benefits. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits. 12. In 1973, U.S. Army initiated the Expeditious Discharge Program as a test; it gave commanders the opportunity to separate unproductive Soldiers 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. The program required Soldiers to voluntarily accept discharge and they could receive either an honorable or general discharge. 13. His record provides the available evidence showing he was discharged under the Expeditious Discharge Program. His personnel qualification shows he was reduced to PV1/E1 under the authority of SPCMO Number 33 (i.e., Article 58a, UCMJ) and on 10 July 1974, he was promoted to PV2. His DD Form 214 shows his rank/grade as PV1/E1, however, his separation packet and orders show his rank/grade as PV2/E2 and his record is void of evidence showing he was reduced to the lowest enlisted grade by the separation authority or other means. 14. Manual for Courts-Martial United States, 1969 (Revised Edition), Article 58a, under the Uniform Code of Military Justice (UCMJ) stated, in pertinent part, a court-martial sentence of an enlisted member in a pay grade above E-1, as approved by the convening authority, that includes confinement reduces that member to pay grade E-1, effective on the date of that approval. 15. 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: 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): A review of the applicant’s record shows his DD Form 214 (Report of Separation from Active Duty) requires administrative corrections that may affect his eligibility for post service benefits. As a result, amend the DD Form 214 to show: * Item 6a/6b: PV2/E2 * Item 7: “74 07 10” * Item 18f (Foreign and/or Sea Service This Period) by replacing "00/01/11" with "01/00/11" * Item 26 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) by adding the Korea Defense Service Medal 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. The Department of the Army began testing the Expeditious Discharge Program (EDP) in October 1973. In a message, dated 8 November 1974, the Deputy Chief of Staff for Personnel announced the expansion of the EDP. The program provided for the separation of Soldiers whose acceptability, performance of duty, and/or potential for continued effective service fell below the standards required for retention in the Army. Soldiers could be separated under this program when subjective evaluation of their commanders identified them as lacking qualities for continued military service because of attitude, motivation, self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. An honorable or general discharge was required and there has never been any provision for an automatic upgrade of a discharge less than fully honorable. 3. Army Regulation 635-200 (Personnel Separation – Enlisted Personnel) in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 5-37, discharge for failure to demonstrate promotion potential, 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. b. An honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member's current enlistment of current period of service with due consideration for the member's age, length of service, grade, and general aptitude. 4. Manual for Courts-Martial United States, 1969 (Revised Edition), in effect at the time, enforced and effected the armed forces of the U.S. with respect to all court-martial processes. Article 58a (Sentences: reduction in enlisted grade upon approval) stated unless otherwise provided in regulations to be prescribed by the Secretary concerned, a court-martial sentence of an enlisted member in a pay grade above E-1, as approved by the convening authority, that includes a dishonorable or bad-conduct discharge; confinement; or hard labor without confinement; reduces that member to pay grade E-1, effective on the date of that approval. 5. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180015626 7 1