IN THE CASE OF: . BOARD DATE: 9 March 2020 DOCKET NUMBER: AR20190013852 APPLICANT REQUESTS: The applicant requests an upgrade of his general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 does not feel he was discharged fairly from the Army. 3. On 9 July 1980, the applicant enlisted in the Regular Army for a period of 3 years. 4. On 16 October 1981, the applicant received non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for failing to be at his appointed place of duty. 5. On 23 March 1982, he received NJP under the provisions of Article 15 of the UCMJ for failing to obey two lawful orders and a legal order. He appealed the NJP, and his appeal was denied. 6. His record shows he was counseled on multiple occasions for: * failure to clean his room/failure to follow instructions * being late to formation * sleeping in the latrine while in charge of quarters * lacking motivation and substandard performance * misconduct and inefficiency 7. On 24 May 1982, the applicant’s commander notified him that he was initiating action to discharge him under the provisions of the paragraph 5-31, Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), Expeditious Discharge Program (EDP). His commander cited the applicant’s inability to cope with the standards and requirements of the military. The applicant continually disregarded these requirements. His failure to meet Army standards of discipline and his lack of desire to become a good Soldier made his continued service unwarranted. The applicant’s commander also informed him of his rights. a. The applicant acknowledged receipt of the notification. He was advised by his consulting counsel of the basis for the contemplated separation action, its effects, and of the rights available to him. He elected not to submit statements in his own behalf. b. On 27 May 1982, his commander formally recommended he be discharged. c. The separation authority approved the applicant’s discharge and directed he be furnished with a General Discharge Certificate. 8. On 7 June 1982, the applicant was discharged accordingly. His DD Form 214 shows he was discharged under honorable conditions in accordance with paragraph 5-31, AR 635-200, based on failing to maintain acceptable standards for retention (EDP). He completed 1 year, 10 months, and 29 days of net active service. The applicant was not awarded a personal decoration. 9. On 15 July 1988, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge. 10. Army Regulation 635-200 states in pertinent part, 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 may be discharged under the EDP. The regulation also provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 11. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statements in light of the published Department of Defense 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 commander’s notification and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the applicant’s misconduct and performance deficiencies; 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 : : : 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 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. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. 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 may be discharged 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 under this program unless he/she voluntarily consented to the proposed discharge. Issuance of an honorable discharge 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 635-200 provides that: a. 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. A general discharge is a separation from the Army under honorable conditions if an individual's military record was not sufficiently meritorious to warrant an honorable discharge. 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. a. 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. b. 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) AR20190013852 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190013852 5 ABCMR Record of Proceedings (cont) AR20190013852 4