ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF

	BOARD DATE:  2 July 2019

	DOCKET NUMBER:  AR20190002774


APPLICANT REQUESTS:  His under honorable conditions (general) discharge be 
upgraded to an honorable discharge.

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 self-authored statement dated            
6 February 2019

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, in effect, his discharge was due to discrimination.  When he 
was evaluated by white instructors, he received failing grades.  However, when he was 
evaluated by black instructors, he received very high passing grades. 
	
3.  The applicant enlisted in the Regular Army on 24 May 1977. 
 
4. The applicant’s service records contains two DA Forms 4187 (Personnel Action) that 
show:

*	he was apprehended and confined by civil authorities on 6 October 1977, for 
being drunk in public and disobeying a police officer’s lawful order
*	his status was changed from confined by civil authorities to present for duty on 
7 October 1977, following his release pending a court appearance on  
8 November 1977     

5.  The applicant accepted non-judicial punishment (NJP), under the provisions of 
Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the 
indicated offenses:

*	on 25 April 1978, for sleeping while being posted as a sentinel, on or about  
20 April 1978
*	on 22 May 1978, for failing to go to his prescribed place of duty, on or about   
16 May and 18 May 1978
*	on 6 December 1978, for willfully disobeying a lawful order, on or about  
1 December 1978
*	on 5 February 1979, for absenting himself from his unit, on or about 25 January 
1979

6.  The applicant received a pre-separation medical exam on 20 March 1979.  The 
Standard Form 88 (Report of Medical Examination) and the DA Form 3822-R (report of 
Mental Status Evaluation) show he had no significant mental illnesses; was mentally 
responsible and able to distinguish and adhere to right from wrong; had the mental 
capacity to understand and participate in board proceedings; met retention standards 
prescribed in Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3; and 
was cleared for administrative discharge.        

7.  The applicant's immediate commander notified the applicant on 26 March 1979 that 
he was initiating actions to separate him from service under the provisions of Army 
Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-37 
(Expeditious Discharge Program (EPD)), due to his lack of motivation, apathetic 
attitude, constant disciplinary problems, and pattern of missing duty.  The applicant's 
commander advised him of the rights available to him and the effect of any actions 
taken by him in waiving his rights.  He further advised him that he would recommend 
that he receive a general discharge.

8.  The applicant consulted with counsel on 27 March 1979 and acknowledged receipt 
of the proposed separation memorandum.  He voluntarily consented to the discharge 
and waived his right to submit a statement in his own behalf.  He acknowledged that he 
may encounter substantial prejudice in civilian life if he received a general discharge, 
under honorable conditions.  

9.  The applicant's commander formally recommended his separation from service, 
under the provisions of Army Regulation 635-200, paragraph 5-37, due to his lack of 
motivation, apathetic attitude, constant disciplinary problem, and pattern of missing 
duty.

10.  Consistent with the chain of commands recommendations, the separation authority 
approved the applicant's discharge and directed that his service be characterized as 
general, under honorable conditions.

11.  The applicant was discharged on 30 March 1979, under the provisions of Army 
Regulation 635-200, paragraph 5-31.  His DD Form 214 confirms his service was 
characterized as under honorable conditions (general).  Item 9c (Authority and Reason), 
contains the entry "PARA 5-31, AR 635-200 SPD JGH."

12.  In reaching its determination, the Board should consider the applicants statement in 
accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

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 sufficient evidence to grant relief.  The Board found that the applicant 
did not complete his first and only enlistment, had no wartime service and insufficient 
evidence of mitigating circumstances for the misconduct.  The Board found insufficient 
evidence of racism that the applicant claims as a mitigating factor.  The Board further 
found insufficient evidence of post-service honorable conduct that might have mitigated 
the discharge characterization.  Therefore, the Board agreed that the applicant’s 
discharge characterization is appropriate.



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 states 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 states a general discharge is a separation from the Army under 
honorable conditions.  When authorized, it is issued to Soldiers whose military record is 
satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 5 provided for the EDP.  The pertinent paragraph in chapter 5 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 could be 
discharged under the EDP.  It provided for the expeditious elimination of substandard, 
nonproductive Soldiers before board or punitive action became necessary.  Soldiers 
had to consent to separation under this program in order for commanders to separate 
them under the provisions of the EDP.  Otherwise, a commander was required to 
separate Soldiers under other provisions of the regulation, which in most cases resulted 
in an under other than honorable conditions discharge.  Individuals discharged under 
this provision of the regulation were issued either a general or honorable discharge.

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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	AR20190002774

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