ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 10 February 2020 DOCKET NUMBER: AR20190011180 APPLICANT REQUESTS: correction of the separation code listed on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 27 July 1982, to enable him to received benefits. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 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, in effect, he served the required time and he was discharged under the expeditious discharge program (EDP). He was not a burden and received no disciplinary action. The discharge was initiated by his unit commander despite wanting to complete his enlistment. 3. The applicant enlisted in the Regular Army on 10 March 1981. 4. His record contains DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice), dated 2 July 1982 and 20 July 1982 for failing to obey an order when he did not secure his room and two instances of failing to go to his appointed place of duty. 5. On 21 July 1982, the applicant was notified by his unit commander that he was initiating action under the provisions of paragraph 5-31 (EDP), Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel). The unit commander recommended the applicant's service be characterized as Under Honorable Conditions. a. The reason for his proposed action was the applicant's: * inability to adapt to the military lifestyle * poor attitude * failure to follow instructions of superiors * lack of responsibility and self-discipline * tardiness, failure to follow instructions and overall lack of motivation b. The applicant acknowledged notification of the proposed separation action. He indicated his voluntary consent to the separation action and declined to submit statements in his own behalf. He acknowledged he understood, if he received an under honorable conditions characterization of service, he could expect to encounter substantial prejudice in civilian life. He acknowledged he was provided the opportunity to consult with an officer of the Judge Advocate General’s Corps. 6. On 23 July 1982, the applicant’s commander submitted a formal recommendation for the applicant’s discharge under the provisions of paragraph 5-31, Army Regulation 635-200. The commander cited the reasons listed in his 21 July 1982, notification to the applicant as a basis for the recommended separation. The commander also included the following attached documents: * 9 June 1982 – counseling statement – absence from required meeting * 11 June 1982 – counseling statement - failure to follow instructions * 11 June 1982 – counseling memorandum – informing the applicant he needed a haircut and advising him about his attitude * Statement of Inspection Findings – failure to follow instructions * 15 June 1982 – Statement – applicant provided instructions for cleaning rooms * 15 June 1982 – Statement – notice of barracks inspection (Assistant Noncommissioned Officer in Charge (NCOIC) * 15 June 1982 – (Disposition Form) notice of barracks inspection (Notice to all) * 15 June 1982 – notice of barracks inspection (NCOIC) * 17 June 1982 – Memorandum for Record – failure to follow instructions * 18 June 1982 – Statement – failure to appear * 2 July 1982 - DA Form 2627 – failure to secure room and failure to be at appointed place of duty * 15 July 1982 – Counseling Statement – failure to report for inspection, failure to report for duty, and unmilitary appearance * 20 July 1982 – DA Form 2627 – Revocation of suspended punishment * 20 July 1982 – DA Form 2627 – Failure to appear for duty 7. On 23 July 1982, the approving commander approved the applicant’s separation under the provisions of paragraph 5-31, Army Regulation 635-200 and directed his receipt of an under honorable (general) character of service. 8. On 27 July 1982, he was discharged under honorable conditions (general) in accordance with Army Regulation 635-200, paragraph 5-31h(2), by reason of EDP – failure to meet acceptable standards for retention. Item 26 (Separation Code) of the DD Form 214 he was issued contains the entry, "JGH." His DD Form 214 shows he completed 1 year, 4 months, and 18 days of net active service. 9. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 10. The applicable regulation states separation code JGH is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200 by reason of EDP failure to maintain acceptable standards for retention. 11. The applicant stated he served the required time, he was not a burden, and received no disciplinary action. The Board should consider the applicant’s statement as evidence in accordance with the published equity, injustice, or clemency determination guidance. 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 and length of service, the frequency and nature of his misconduct, counseling records, the separation packet and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The applicant was still in a status that allowed him to be discharged under the EDP. Based on a preponderance of evidence, the Board determined that the separation code the applicant received was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found the 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. 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 provides that an honorable discharge or relief from active duty 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 provides that an under honorable conditions (general) discharge or relief from active duty is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge or honorable relief from active duty. c. Chapter 5 of the version in effect at the time 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 or released from active duty under the EDP. It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary. No member would be discharged or released from active duty under this program unless he/she voluntarily consented to the proposed separation. Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment, with due consideration for the member's age, length of service, grade, and general aptitude. 3. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states that SPD code JGH is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200 by reason of EDP failure to maintain acceptable standards for retention. 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 (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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190011180 4 1