IN THE CASE OF: BOARD DATE: 20 March 2020 DOCKET NUMBER: AR20190012876 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 13 September 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, at the time of his discharge he was a young man finding his way, and he made mistakes. He feels he should have been given an opportunity to make it right and become a good Soldier. But they told him he could get out with a general discharge. Had he known better, he would have stayed, did things the Army way, and earned an honorable discharge. He was not a quitter. 3. The applicant enlisted in the Regular Army on 4 April 1979. 4. The applicant received non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: * on 18 October 1979, for failing to go at the time prescribed to his appointed place of duty, on or about 9 October 1979; his sentence included a suspended reduction to the grade of private E1; the suspension was vacated on 12 December 1979 * on 17 December 1979, for willfully disobeying a lawful order form his superior noncommissioned officer (NCO), on or about 6 December 1979; he appealed his punishment on 28 December 1979; his appeal denied on 11 January 1980 * on 4 March 1980, for failing to go at the time prescribed to his appointed place of duty, on or about 19 February 1980; and for being disrespectful in language towards an NCO and for communicating a threat towards his superior NCO, on or about 11 February 1980 5. The applicant's immediate commander notified the applicant on 1 April 1980 that he was initiating actions to release him from active duty under the provisions of Army Regulation 635-200, paragraph 5-31 (Expeditious Discharge Program (EDP)), with transfer to the Individual Ready Reserve (IRR) to complete his service obligation. The applicant's commander advised him of the rights available to him and of the effect of any action taken by him to waive his rights. 6. The applicant acknowledged receipt of the proposed separation memorandum and further acknowledged that he may encounter substantial prejudice in civilian life if he received an under honorable conditions discharge. He voluntarily consented to the separation on 1 April 1980. He elected not to submit statements in his own behalf. 7. The applicant's commander formally recommended his separation from service under the provisions of Army Regulation 635-200, paragraph 5-31, based on his poor attitude and performance even after continuous counseling and correction. His repeated instances of absence from place of duty and disobedience of superiors demonstrated a lack of self-discipline while his shirking of duty and need for constant supervision showed no motivation for continued service. All indications were that continued attempts on the part of the unit at rehabilitation would be fruitless. 8. The applicant underwent a mental status evaluation. The relevant Report of Mental Status Evaluation showed he had no significant mental illness; was mentally responsible and able to distinguish right from wrong; and able to adhere to the right; had the mental capacity to understand and participate in board proceedings; and met retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3. 9. Consistent with the commander’s recommendations, the separation authority approved the applicant's separation from active duty and transfer to the IRR on 25 April 1980. He directed his service be characterized as under honorable conditions. 10. The applicant was released from active duty on 29 April 1980, under the provisions of Army Regulation 635-200, paragraph 5-31. He was credited with completing one year and 26 days of total active service. His DD Form 214 confirms his service was characterized as under honorable conditions (general). 11. The applicant applied to the Army Discharge Review Board for an upgrade of his service characterization; however, the Board denied his request on 30 September 1983. 12. The Board should consider the applicant's request 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 of service, the frequency and nature of his misconduct 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. 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 :XXX :XXX :XXX 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 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) AR20190012876 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190012876 5 ABCMR Record of Proceedings (cont) AR20190012876 4