IN THE CASE OF: BOARD DATE: 22 April 2019 DOCKET NUMBER: AR20180017003 APPLICANT REQUESTS: The applicant request his under honorable conditions discharge be upgraded to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) 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 was told after 10 years, he would be able to change his discharge status from general to honorable. 3. On 11 September 1979, the applicant entered the Regular Army. 4. On 20 March 1980, he received non-judicial punishment (NJP) for missing movement. 5. On 20 March 1981, the applicant was formerly counseled by his commander for becoming drunk, disorderly, and failing to follow a lawful order. 6. On 4 April 1981, he received NJP for failing to go to his prescribed appointed place of duty (guard duty). 7. On 18 May 1981, the applicant's commander notified him that he was initiating action to discharge him under the provisions of paragraph 5-37 (Expeditious Discharge Program) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) with a general discharge. a. The commander stated the reasons for his proposed action were the applicant's poor attitude, lack of motivation, lack of discipline, inability to adapt socially, failure to demonstrate promotion potential, and hostility toward the Army. b. The applicant was advised by legal counsel of his available rights, provided a statement on his own behalf, and acknowledged the commanders proposed discharge action. The commander recommended the applicant be discharge and furnished a general discharge. 8. On 20 May 1981, the appropriate authority approved the discharge and directed the applicant be issued a general discharge certificate. 9. On 27 May 1981, the applicant was discharge accordingly. His DD Form 214 shows: * Character of Service: under honorable discharge * Separation Authority: AR 635-200 PARA 5-31h(2) * RE Code: RE-3 * Net Active Service This Period: 1 year, 3 month and 21 days 10. The applicant states he was told after 10 years he would be able to charge his discharge status from general to honorable. 11. 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. 12. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statement 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 board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the applicant had limited creditable service, no wartime service and no mitigating circumstances for the misconduct. The applicant continued a pattern of misconduct after the unit attempted to rehabilitate the applicant by transferring the applicant to another unit. The applicant claims to have been told that his discharge would automatically be upgraded after 10 years, but provides no evidence of this, and such a practice is not in accordance with Army policy. 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 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, then in effect, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. b. Paragraph 5-31 (Expeditious Discharge Program) provided for the discharge of enlisted personnel who demonstrated 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. The regulation provided that no individual would be discharged under this provision unless the individual voluntarily consented to the proposed discharge. Individuals discharged under this regulation were issued either an honorable or a general 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 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. 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, 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. 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) AR20180017003 3 ABCMR Record of Proceedings (cont) AR20180017003 1