ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  12 November 2019

	DOCKET NUMBER:  AR20180016208


APPLICANT REQUESTS:   upgrade of his general discharge under honorable 
conditions.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 293 (Application for the Review of Discharge from the Armed Forces of 
the United States)
*	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 (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:

   a.  He was very young during his military service, 17 years old, and his mother 
was diagnosed with cancer at the time.  That created emotional stress for him and 
he was very angry and rebellious.
   
   b.  He has since been a very successful information technology manager and 
engineer along with having a part-time job as a fitness instructor.  He does not have 
a criminal record and has been an exemplary employee, husband, and father.  
Please consider changing the characterization of his service to honorable.

3.  The applicant enlisted in the Regular Army on 4 November 1976, at the age of 
17.

4.  Multiple DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code 
of Military Justice (UCMJ)), show he accepted nonjudicial punishment (NJP) under 
Article 15 of the UCMJ on the following occasions for the following misconduct:

*	3 March 1977, for having more or less one ounce of marijuana in his 
possession on 3 March 1977
*	26 April 1978, for willfully disobeying a lawful order from his superior 
noncommissioned officer on 18 April 1978 to get a haircut and for willfully 
disobeying a lawful order from his superior noncommissioned officer to 
remove a stocking cap from his head on 18 April 1978
*	21 July 1978, for without authority, failing to go at the time prescribed to his 
appointed place of duty on 21 July 1978

5.  On 7 August 1978, he was notified by his immediate commander of his initiation 
of action to discharge him from the Army under the expeditious discharge program 
(EDP), paragraph 5-37, Army Regulation 635-200, with a general discharge under 
honorable conditions.  The reasons for the proposed action were that despite all 
efforts of his chain of command, he failed not only to meet minimum goals but also 
failed to demonstrate any semblance of a desire to improve.  The exhausting burden 
of his presence was not commensurate with his productivity and his retention in the 
Army would be an act of negligence on the part of his chain of command.

6.  On 7 August 1978, he acknowledged notification of the proposed discharge 
under the EDP and voluntarily consented to discharge from the Army.  He submitted 
a statement in his behalf, acknowledged he was provided the opportunity to consult 
with an officer of the Judge Advocate General’s Corps, and acknowledged he may 
expect to encounter substantial prejudice in civilian life if issued a general discharge 
under honorable conditions.  

7.  In the applicant’s personal statement, he stated:

	a.  He believed he should receive an honorable discharge because he was 
planning ahead for his future.  He was planning to get married in December 1978 
and getting a general discharge would lessen his chances of getting a job to support 
his wife.  

	b.  The people who wrote the counseling statements and NJP knew his 
personality and that he just could not adjust so far as the military was concerned.  
Most of his misconduct was because of not getting a haircut and the silliest one was 
for having a stocking cap on in his room.  As far as his willingness to work, he 
always tried to do his best at the job his does.  In a way he didn’t want to get out, but 
if there was no other way he wanted to go the right way so he wouldn’t suffer in the 
long run.

8.  On 15 August 1978, the approval authority directed the applicant’s discharge 
under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted 
Personnel), paragraph 5-31, for failure to meet acceptable standards for continued 
military service.  A General Discharge Certificate was to be furnished.

9.  His DD Form 214 shows he was discharged under the provisions of paragraph 
5-31, Army Regulation 635-200, with Separation Program Designator “JGH” 
(Expeditious Discharge).  He was credited with 1 year, 10 month, and 3 days of net 
active service this period and his service was characterized as general, under 
honorable conditions.

10.  There is no evidence of record the applicant was diagnosed with or treated for 
any behavioral health conditions during his period of service.

11.  On 10 October 2019, the Army Review Boards Agency (ARBA) clinical 
psychologist provided an advisory opinion that states based on a thorough review of 
all available evidence, there is insufficient documentation to conclude the applicant 
had a psychiatric condition while in service and there is no medical mitigation for the 
misconduct that led to his discharge.

12.  On 18 October 2019, the applicant was provided a copy of the advisory opinion 
and given an opportunity to submit comments, but he did not respond.


BOARD DISCUSSION:

The Board carefully considered the applicant's request, supporting documents, 
evidence in the records, a medical advisory opinion and published DoD guidance for 
liberal consideration of discharge upgrade requests.  The Board considered the 
applicant's statement, his record of service, the frequency and nature of his 
misconduct, and the reason for his separation.  The Board considered the 
applicant's claim to have had a behavioral health condition and the review and 
conclusions of the medical advising official based on available medical records.  The 
Board found insufficient evidence of in-service mitigating factors and concurred with 
the conclusion of the medical advising official regarding his misconduct not being 
mitigated by a psychiatric condition.


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.


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.  On 25 August 2017, the Office of the Undersecretary of Defense for Personnel 
and Readiness issued clarifying guidance for the Secretary of Defense Directive to 
DRBs and BCM/NRs when considering requests by veterans for modification of their 
discharges due in whole or in part to:  mental health conditions, including PTSD, 
traumatic brain injury, sexual assault, or sexual harassment.  Boards are to give 
liberal consideration to veterans petitioning for discharge relief when the application 
for relief is based, in whole or in part, on those conditions or experiences.  The 
guidance further describes evidence sources and criteria and requires boards to 
consider the conditions or experiences presented in evidence as potential mitigation 
for misconduct that led to the discharge.
	
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 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.  This 
guidance does not mandate relief, but rather provides standards and principles to 
guide BCM/NRs 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.
	
4.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets 
forth the basic authority for the separation of enlisted personnel.
	
	a.  Paragraph 5-31, in effect at the time (paragraph 5-37 in the previous version 
of the regulation) provides that individuals who have demonstrated they cannot or will 
not meet acceptable standards required of enlisted personnel in the Army, because of 
the existence of one or more of the following conditions, may be discharged under the 
expeditious discharge program (EDP):
	
*	poor attitude
*	lack of motivation
*	lack of self-discipline
*	inability to adapt socially or emotionally
*	failure to demonstrate promotion potential
	
	b.  No members shall be discharged under this program unless the Army member 
voluntarily consents to the proposed discharge.  Individuals discharged under the EDP 
may be awarded an honorable or general discharge certificate as appropriate.

NOTHING FOLLOWS

ABCMR Record of Proceedings (cont)	 AR20180016208

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