ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:    BOARD DATE:  6 April 2020 DOCKET NUMBER:  AR20190015079 


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 ofthe United States), dated 10 August 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 MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states he did not get an honorable discharge because he wasoverweight.

3.The applicant enlisted in the Regular Army on 10 August 1979.

4.The applicant received a Letter of Commendation on 11 February 1980 and Lettersof Appreciation on 26 November 1980 and 11 March 1981.

5.The applicant accepted nonjudicial punishment (NJP), under the provisions ofArticle 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for theindicated offenses:

.on 17 October 1979, for disobeying a lawful order from a noncommissionedofficer (NCO), on or about 13 October 1979

.on 19 January 1982, for disobeying a lawful order from an NCO, usingdisrespectful language toward a superior NCO, and exhibiting disrespectfuldeportment toward a superior NCO, on or about 17 December 1981



6.The applicant had been placed on the weight control program at the time of hisenlistment and continued on and off on the program during his entire period ofenlistment.  He received numerous general counseling statements for failure to makeprogress or to maintain his weight reduction goals.  Several of the statements indicatethat instead of losing weight, he had gained weight.

7.The applicant received a bar to reenlistment on or about 5 November 1981, due tohis weight control problems and an apathetic attitude toward reaching and maintaininghis weight goal.

8.A U.S. Army Armor Center (USAARMC) Form 4939 (Characterization of ServiceChecklist for Administrative Discharge Action), dated 9 May 1982, shows the applicantwas absent without leave (AWOL) for 6 days and had been reduced in rank/grade fromspecialist four/E-4 to private first class/E-3.

9.The applicant's immediate commander notified the applicant on 10 May 1982 that hewas initiating actions to separate him from service under the provisions of ArmyRegulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31.  Asreasons for his actions, his commander cited his poor attitude, lack of motivation andself-discipline, inability to adapt socially and emotionally to a military environment, andfailure to demonstrate further promotion potential.

10.The applicant acknowledged the proposed separation notification under ArmyRegulation 635-200, paragraph 5-31.  He consulted with counsel and acknowledged hehad been advised of and understood his rights, that if his service was characterized asgeneral, under honorable conditions, he could expect to experience substantialprejudice in civilian life, that there is no automatic review or upgrading of his discharge,and he could not apply for reenlistment for two years.  He indicated he was electing toprovide a statement in his own behalf.

11.A Memorandum for Record, dated 12 May 1982, states the applicant providedsome documents in lieu of a statement; however, the documents provided are notattached to the separation action documentation.

12.The separation authority approved the applicant's discharge; however, a copy of theapproval is not of record.

13.The applicant was discharged on 21 May 1982.  The DD Form 214 he was issuedshows he was discharged under the provisions of Army Regulation 635-200,paragraph 5-31h(1).  His DD Form 214 shows he was discharged in the rank/grade ofprivate first class/E-3; his service characterization was under honorable conditions; andhis narrative reason for separation was shown as "Expeditious Discharge Program EDPFailure to Maintain Acceptable Standards for Retention."
14.While the applicant's weight was a significant factor in his separation it was not thesole reason for the EDP discharge as demonstrated by his counseling statements,NJPs, and period of AWOL.

15.The Board may consider the applicant's petition, his service record, and hisstatements in light of the published guidance on equity, injustice, or clemency.

BOARD DISCUSSION: 

After reviewing the application and all supporting documents, the Board found that relief was not warranted.  The Board carefully considered the applicants 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, a bar to reenlistment, thereason for his separation and whether to apply clemency.  The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of reference to weigh 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. 
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. 
X CHAIRPERSON


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 militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.Army Regulation 15-185 (ABCMR) prescribes the policies and procedures forcorrection of military records by the Secretary of the Army, acting through the ABCMR.The regulation provides that the ABCMR begins its consideration of each case with thepresumption of administrative regularity.  The applicant has the burden of proving anerror or injustice by a preponderance of the evidence.

3.Army Regulation 600-9 (The Army Weight Control Program) establishes policies andprocedures for the implementation of the Army Weight Control Program (AWCP).  a.The primary objective of the AWCP is to insure that all personnel are able to meet thephysical demands of their duties under combat conditions and present a trim militaryappearance at all times.  This regulation provides that excessive body fat connotes alack of personal discipline, detracts from military appearance, and may indicate a poorstate of health, physical fitness, or stamina.  It further provides that the objectives of theAWCP are to assist in establishing and maintaining:

.discipline

.operational readiness

.optimal physical fitness

.health

.effectiveness of Army personnel through proper weight control

.establish appropriate body fat standards

.provide procedures for which personnel are counseled to assist in meeting thestandards prescribed in this regulation

.roster high standards of professional military appearance expected of allpersonnel



4.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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.When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 

c.Paragraph 5-31, in effect at the time, provided for the separation of personnelbecause of unsatisfactory performance or conduct (or both) under the EDP.  This program provided that an individual who had completed at least six months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that he could not or would not meet acceptable standards could be separated under the EDP.  Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general 
discharge had to be initiated by the immediate commander and the individual had to be afforded the opportunity to consult with legal counsel.   
 
5.  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. 
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