IN THE CASE OF: BOARD DATE: 7 October 2019 DOCKET NUMBER: AR20190009007 APPLICANT REQUESTS: The applicant request in effect 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 given an early discharge and it was a general. He was just a kid, 19 years old when he totaled a pickup truck and was given the choice of a discharge or a court-martial. He was a scared kid with a ninth grade education who did not receive medical treatment or any legal advice. 3. On 19 September 1975, the applicant underwent a physical examination rendering him qualified for enlistment. On 24 September 1975, the applicant enlisted in the Regular Army for three years at the age of 18 with a ninth grade education. 4. On 6 January 1976, he received non-judicial punishment (NJP) for being absent without authority (AWOL) from 3 December 1975 to 16 December 1975. 5. On 19 January 1977, he received NJP for stealing a military vehicle in the amount of $3500. 6. On 26 January 1977, he underwent a medical examination; he was found qualified for separation. 7. A memorandum [undated], Headquarters, Headquarters Company, U.S. Army Garrison, Fort Carson, CO, subject: Discharge Under the Provisions of Paragraph 5-39, AR 635-200, shows the applicant's commander notified him that he was initiating action to discharge him under the provisions of paragraph 5-39 [5-37 (Expeditious Discharge Program)] of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) with a general discharge. The commander stated the reasons for his proposed action were because of his attitude and lack of motivation did not meet the necessary standards to warrant his continued service in the U.S. Army and did not believe it would be productive for the applicant to remain in the service. The applicant was advised: a. The final decision, if discharged and the type of discharge rests with the discharge authority. If given a general discharge, he may expect to consult with an officer of the Judge Advocate General's (JAG) Corps prior to completing the acknowledgment. b. He had the right to decline his discharge. If declined and his subsequent conduct indicates that such action is warranted, he may be subject to disciplinary administrative separation procedures under the provisions of law or regulation. c. He had the right to submit a state on his own behalf or waive this right. 8. On 4 February 1977, the applicant was counselled by JAG Defense Counsel in reference to his impending discharge. a. The applicant acknowledged notification of his proposed discharge and voluntarily consented to be discharged from the United States Army. He waived his right to submit a statement on his own behalf and signed that he understood if he was issued a general discharge under honorable conditions, he may expect to encounter substantial prejudice in civilian life. He acknowledged he had been provided the opportunity to consult with an officer of the JAG Corps. He understood that he may, prior to the date of his discharge approving his discharge, withdraw his voluntary consent to this discharge and if he declined to accept this discharge voluntarily, he may at a further time, if his conduct warrants, be subject to separation under other than honorable conditions. b. The applicant’s chain of command endorsed the separation recommendation and on 7 February 1977, the appropriate authority approved the discharge and directed the applicant be issued an honorable discharge certificate. c. On 24 September 1975, he was discharged accordingly. His DD Form 214 shows he completed 1 year, 4 months, and 10 days; approximately 13 days AWOL. 8. 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. 9. In regards to the applicant's contention of having never received medical care or legal advice. His record shows he underwent a medical examination prior to entering the Army as well as prior to being discharged; he was deemed qualified for both. A Report of Medical History shows the applicant did receive medical care. He also contends he never received any legal advice however, on 4 February 1877, the applicant’s defense counsel wrote a statement stating he counseled the applicant in reference to his impending discharge and the applicant signed a statement acknowledging he had been provided the opportunity to consult with an officer of the Judge Advocate General’s Corps. 10. 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 education level, the length of his service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found no in-service mitigation for the applicant’s misconduct 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 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. 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. a. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. b. 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. ABCMR Record of Proceedings (cont) AR20190009007 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190009007 5 ABCMR Record of Proceedings (cont) AR20190009007 4