ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	
	BOARD DATE:  20 August 2019

	DOCKET NUMBER:  AR20190006303


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	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 3-year time frame provided in Title 10 (Armed 
Forces), United States Code (USC), section 1552 (b) (Correction of Military Records:  
Claims Incident Thereto).  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, he was really discharged due to family issues.  

	a.  His wife was living over 100 miles from where he was stationed and their physical 
separation strained their marriage; he feared they might divorce.  His first sergeant 
(1SG) helped him transfer to a location that was closer, but, unfortunately, they called 
him back to base on two occasions; eventually, his leadership told him the transfer 
would not be approved.  There were other issues that contributed to his hardships; this 
included vehicle problems that prevented him from visiting his wife and caused him to 
report late for duty.  

	b.  His 1SG offered him a hardship discharge and he accepted, believing this would 
save his marriage.  Because he had had no disciplinary actions against him, his 1SG 
told him to go absent without leave (AWOL) for 2 days.  By going AWOL, this would 
allow his leadership to offer him nonjudicial punishment (NJP) under Article 15, Uniform 
Code of Military Justice, and then to proceed with a discharge action.  The NJP 
punishment he received was a demotion, after which he was discharged.  

	c.  Since his discharge, he has continued his efforts to act honorably; he recently did 
some work to help homeless Veterans.  He assisted them with dental appointments and 
shopping, and has been applying for jobs at his local Department of Veterans Affairs 
office.  To be granted his request for an upgrade would be a personal point of honor for 
him; he contends he served honorably for nearly 2 years and had no disciplinary 
problems, apart from the aforementioned NJP.

3.  The applicant's service records show:

	a.  He enlisted into the Regular Army for a 3-year term on 29 December 1975; he 
was 17 years old.  While participating in advanced individual training, his chain of 
command promoted him to private (PV2).E-2, effective 29 April 1976.  Following initial 
training, orders assigned him to Fort Lewis, WA; he arrived on 20 May 1976.  

	b.  On 27 September 1976, he accepted NJP for being AWOL from 25 to 
26 September 1976 (2 days).  Punishment included a suspended reduction from PV2 to 
private (PV1)/E-1.  

	c.  At some point prior to 2 September 1977, his chain of command promoted him to 
private first class (PFC)/E-3.  On 6 September 1977, he accepted NJP for failing to go 
to his appointed place of duty at the time prescribed; the imposing officer reduced him 
from PFC to PV2.  

	d.  On or about 28 September 1977, his Fort Lewis commander notified the applicant 
in writing of his intent to separate him under the provisions of a Department of the Army 
(DA) message, dated in November 1974.  The commander stated his reasons were:

*	The applicant's lack of promotion potential; marginal duty performance; lack 
of adaptability to the military; and his apathetic attitude towards the military
*	The applicant's NJP, accepted on 27 September 1976
*	Four counseling statements, reflecting minor infractions such as missing 
formation; having dirty boots, needing a haircut; and being disrespectful to a 
noncommissioned officer

	e.  On or about 30 September 1977, the applicant acknowledged and voluntarily 
accepted his commander's proposed separation action; he waived his right to submit a 
statement in his own behalf.

	f.  On or about 10 October 1977, the separation authority approved the commander's 
recommendation and directed the applicant's general discharge under honorable 
conditions, per paragraph 5-37 (Expeditious Discharge Program (EDP)), Army 
Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  On 14 October 
1977, he was discharged accordingly.  His DD Form 214 shows he completed 1 year, 
9 months, and 14 days of his 3-year enlistment contract; he was awarded or authorized 
a marksmanship qualification badge.
4.  The applicant asserts family problems caused his adverse discharge; he contends 
his leadership offered to separate him for hardship reasons and, in effect, instructed him 
to go AWOL so he would be offered an NJP; the NJP would then justify the initiation of 
separation action.  Since his discharge, he has helped homeless Veterans.

	a.  The evidence of record shows he was AWOL for 2 days in September 1976 and, 
as a result, his commander administered NJP; a year later, in September 1977, the 
applicant accepted a second NJP for failing to report for duty on time.  In September 
1977, when his commander initiated separation proceedings against the applicant, the 
commander's stated bases were the applicant's lack of promotion potential, marginal 
duty performance, and apathetic attitude; he also cited a number of minor infractions. 

	b.  The Army implemented the EDP so that commanders could separate Soldiers 
who demonstrated they could not, or would not meet acceptable standards; the intent 
was to relieve units of the administrative burden typically associated with eliminations 
for cause.  Soldiers discharged under this provision had to have completed at least
6, but not more than 36 months of continuous active service, and were required to 
voluntarily accept the separation.  

	c.  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:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records and published DoD guidance for consideration of discharge 
upgrade requests.  The Board considered the applicant’s statement, his record of 
service, the frequency and nature of his misconduct, the reason for his separation and 
whether to apply clemency.  The Board found insufficient evidence of in-service 
mitigating factors and the applicant provided no evidence of post-service achievements 
or letters of reference in support of a clemency determination.  Based on a 
preponderance of evidence, the Board determined that the character of service the 
applicant received upon separation was not in error or unjust.

2.  After reviewing the application and all supporting documents, the Board found that 
relief was not warranted.




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 3 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 3-year statute of limitations if the ABCMR determines it would be in the 
interest of justice to do so.  

2.  AR 635-200, in effect at the time, set forth the basic authority for the separation of 
enlisted personnel.

	a.  Paragraph 1-9d (Honorable Discharge) stated an honorable discharge was a 
separation with honor.  Issuance of an honorable discharge was conditioned upon 
proper military behavior and proficient duty performance.  A Soldier's service was to be 
characterized as honorable based on conduct ratings of at least "Good"; efficiency 
ratings of at least "Fair"; no general court-martial, and no more than one special court-
martial conviction.

	b.  The U.S. Army, Europe was the first major command to use the Expeditious 
Discharge Program (EDP) on a test basis in 1973.  Throughout 1974 and into early 
1975, the Army issued a series of DA messages in which they addressed the EDP (this 
included a message dated 111445Z November 1974).  In June 1975, the Army 
announced the Army-wide implementation of the EDP via an interim change and placed 
the program under paragraph 5-37, AR 635-200.  

		(1)  The EDP was intended to relieve commanders of the administrative burden 
typically associated with eliminations for cause, and to allow commanders to remove 
Soldiers who demonstrated they could not, or would not meet the acceptable standards.  

		(2)  Eligible Soldiers had to have completed at least 6, but not more than 
36 months of continuous active service, and were required to voluntarily accept the 
discharge.  Soldiers approved for EDP separation could receive either an honorable or 
general discharge.  With the interim change, commanders in the grade of lieutenant 
colonel/O-5 were given the authority to approve EDPs.  

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.  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.  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)	 AR20190006303

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