IN THE CASE OF: BOARD DATE: 29 September 2021 DOCKET NUMBER: AR20200009368 APPLICANT REQUESTS: upgrade of his general, under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, 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 he was young when he enlisted. Prior to accepting the general discharge, he lost a close relative who died in a hiking accident at a young age. He was not given leave to attend services. Shortly after, he was the victim of a hazing incident perpetrated by his unit that caused him to fear for his life. He took the offered discharge for his emotional health and safety, not understanding the long term consequences. 3. Review of the applicant's service records shows: a. He enlisted in the Regular Army on 14 February 1977, and held military occupational specialty 11E (Armor Crewmember). b. on 19 July 1977, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for assaulting an individual by kicking him in the face. His punishment consisted of forfeiture of pay and extra duty. c. On 14 December 1977, the applicant’s immediate commander notified the applicant that he intended to recommend his discharge from the Army under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-37 (Expeditious Discharge Program (EDP)). He recommended a general discharge and cited the following specific reasons: (1) Since assignment to this unit been, his past performances and attitudes toward the Army in general have shown that he is not suitable for military service. He has proven himself to be a low quality individual who cannot work or perform his duties in a military manner. Not only has his work performances been below standard but he has shown that he lacks the ability to intermix with fellow Soldiers. (2) From his arrival, he has been in trouble. Within a week he was involved in a fight in downtown Butzbach. Following that, he started a long string of missing formations (18 July, 1 August, forward) and indicated that he could not control his temper or his mouth by being disrespectful to his superiors. He was counseled on 7 August 1977 and again on 12 August 1977 for being disrespectful and using foul language toward an NCO. His actions have indicated that he could not maintain a good relationship with fellow soldiers. (3) By the end of the first period, a majority of the Company had reached a point in their relationship with him where physical violence was a possibility. Next, when the unit went on a jeep-x in July, he was involved in an incident with an NCO wherein he kicked him in the face, requiring him to receive medical care. Consequently, he received an Article 15. Within a month of that time, he was also involved in a fight with his roommate. Throughout his stay in this Company he has not been able to get along with his contemporaries or superiors. It is in his and the Army's best interest that he is discharged. He has more than demonstrated that he lacked the ability to function as a Soldier in the Army. d. On 14 December 1977, the applicant acknowledged notification of his proposed discharge from the Army. He consulted with legal counsel and he was advised of the basis for the contemplated separation from the Army; the effect on future enlistment in the Army; the possible effects of a general discharge; and of the procedures and rights that were available to him. * he voluntarily consented to this discharge * he acknowledged he understood if he received a general discharge he could expect to encounter substantial prejudice in civilian life * he elected not to submit a statement in his own behalf e. Subsequent to this acknowledgement, the immediate commander initiated separation action against the applicant due to "Poor attitude, lack of motivation inability to get along with others and inability to adapt to the military." f. On 15 December 1977, the separation authority approved the applicant's discharge under the provisions of the EDP by reason of failure to meet acceptable standards for continued military service (lack of motivation and poor attitude) and directed that he receive a General Discharge Certificate. On 29 April 1977, the applicant was discharged accordingly. g. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of paragraph 5-37 of AR 635-200 with a general, under honorable conditions discharge. He completed 10 months and 16 days of active service. h. There is no indication he petitioned the Army Discharge Review Boar for review of his discharge processing within that board's 15-year statute of limitations. 4. By regulation (AR 635-200), enlisted Soldiers 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 Expeditious Discharge Program. 5. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 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 liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. He was discharged under the provisions of the expeditious discharge program with a general, under honorable conditions discharge. He completed 10 months and 16 days of active service. The applicant provided insufficient evidence of post-service achievements in support of a clemency determination. After reviewing the application and all supporting documents, the Board found that relief was not warranted based upon guidance for consideration of discharge upgrade requests. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX: XX: 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, United States Code, 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. 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 Expeditious Discharge Program. 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 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. b. The 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. 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) AR20200009368 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1