IN THE CASE OF: BOARD DATE: 2 April 2020 DOCKET NUMBER: AR20190013548 APPLICANT REQUESTS: The applicant requests upgrade of his general discharge under honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Army Discharge Review Board). 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 he wants to be honored as an American Veteran. 3. The applicant's service records show: a. On 7 November 1973, the applicant enlisted into the Regular Army for 3 years. On completion of initial training, orders assigned the applicant to Fort Benning, GA; he arrived at Fort Benning on 28 January 1974. On 8 March 1974, the applicant's Fort Benning chain of command promoted him to private (PV2)/E-2. b. On 10 April 1974, consistent with the applicant's pleas, a special court-martial convicted the applicant of Uniform Code of Military Justice (UCMJ) violations. (1) The court found the applicant guilty of three specifications of larceny: the applicant stole U.S. currency from three individuals, in the amounts of $97, $112, and $31, respectively. (2) The court sentenced the applicant to the following: reduction to private (PV1)/E-1, forfeiture of $150 per month for 3 months, and 100 days' confinement. On 3 May 1974, the court-martial convening authority approved only so much of the sentence as provided for the applicant's reduction to PV1, forfeiture of $150 per month for 3 months, and confinement for 30 days, with the 30 days of confinement suspended for a period of 30 days. c. On 12 July 1974, the applicant accepted nonjudicial punishment (NJP) under Article 15, UCMJ for wrongfully appropriating a military vehicle valued at about $3,196. At some point prior to 4 April 1975, the applicant's chain of command promoted him to PV2/E-2. d. On 4 April 1975, the applicant accepted NJP for absenting himself without authority (AWOL) for 1 day; punishment included reduction to PV1/E-1 (suspended for 60 days). Effective 23 June 1975, the applicant's leadership promoted him to private first class (PFC)/E-3. e. On 24 July 1975, the applicant's Fort Benning commander notified him in writing of his intent to separate the applicant under the provisions of paragraph 5-37 (Expeditious Discharge Program (EDP)), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The commander's stated reasons were based on the following: * 13 January 1975 – AWOL from a unit formation * 1 March 1975 – AWOL from a unit formation * 4 April 1975 – NJP for 1 day AWOL * 15 April 1975 – leaving his place of duty without authority * 2 June 1975 – AWOL from unit formation * 19 June 1975 – not reporting for duty until 0748 hours e. On or about 24 July 1975, the applicant acknowledged and voluntarily accepted his commander's proposed separation action; the applicant waived his right to submit a statement in his own behalf. f. On 25 July 1975, the separation authority approved the commander's recommendation and directed the applicant's general discharge under honorable conditions; on 5 August 1975, the applicant was discharged accordingly. His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 8 months, and 28 days of his 3-year enlistment contract, with 1 day of lost time; he was awarded or authorized the National Defense Service Medal. 4. The applicant essentially argues he wants his military service recognized as honorable. a. 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. The evidence of record indicates the applicant had completed more than 6, but less than 36 months of continuous active service and he voluntarily accepted the discharge. b. 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, regulatory requirements, 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 character and reason for his separation. The Board noted the facts presented above. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XX 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190013548 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190013548 5 ABCMR Record of Proceedings (cont) AR20190013548 4