IN THE CASE OF: BOARD DATE: 20 April 2021 DOCKET NUMBER: AR20210006045 APPLICANT REQUESTS: The applicant requests an upgrade of his general, under honorable conditions discharge to an honorable discharge. 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 (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 requests an upgrade because at the time of his service, he had a sick infant at home who needed full time care. He did not know he could request an upgrade until he received his DD Form 214 (Certificate of Release or Discharge from Active Duty) and was informed that he could make the request. 3. On 9 November 1979, the applicant enlisted in the Regular Army for a term of 3 years, at the age of 17 years old. 4. After completing his initial entry training, on 5 May 1980, he was assigned to Fort Campbell, KY, in the military occupational specialty 67N (Utility Helicopter Repairman). 5. The applicant was counseled on 11 occasions, for, but limited to: * failing to be at his appointed place of duty at the time prescribed, on multiple occasions * nonpayment of just debt (apartment rent) * failing to shave * performance counseling – unsatisfactory performance * not being recommended for promotion – needed improvement in initiative and responsibility * failing to follow instructions 6. The applicant's immediate commander notified the applicant that he was initiating separation actions against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program (EDP)). The basis for his proposed action was the applicant lacked motivation and his inability to adapt socially or emotionally. The commander advised him that he had the right to decline this separation, but if he declined and his subsequent conduct indicated that such action was warranted, he may be subjected to disciplinary or administrative separation procedures. The commander stated he would be recommending the applicant for an honorable discharge. 7. On 29 January 1981, the applicant acknowledged he had been advised of the basis of the contemplated separation action, he elected not to submit a statement in his own behalf, and he voluntarily consented to the separation. 8. By DA Form 2496 (Disposition Form), 29 January 1981, the immediate commander submitted his recommendation for separation to the approval authority. It stated the applicant failed to respond to numerous counseling over a period of 10 months. He could not meet military standards of appearance and job performance. He recommended an honorable characterization of service. 9. The appropriate commander approved the recommendation for separation and directed that the applicant be issued a general, under honorable conditions character of service. 10. The applicant declined a separation medical examination. A physician screened his medical records and found no medical problems that were not currently under treatment or previously evaluated. 11. His DA Form 2 (Personnel Qualification Record – Part I) shows he was married and he had a total of two dependents. 12. On 24 February 1981, the applicant was released from active duty and transferred to the U.S. Army Reserve (USAR) (Annual Training), Saint Louis, MO. His service was characterized as under honorable conditions (general). He completed 1 year, 3 months, and 16 days, with 16 days' excess leave, of his 3-year contractual obligation. His DD Form 214, shows he was awarded or authorized the M-16 Rifle Marksman Marksmanship Qualification Badge and Aircraft Crewman Badge. 13. On 8 November 1985, he was discharged from the USAR Ready Reserve, with a general, under honorable conditions character of service. 14. The applicant requests an upgrade of his general, under honorable conditions discharge. He states at the time of his service, he had a sick infant who needed full time care. a. His record shows he enlisted at the age of 17 years old. He was counseled on 11 occasions for various infractions. He was married and had a total of two dependents. Although his immediate commander recommended an honorable character of service, the approving separation authority directed he be issued a general, under honorable conditions character of service. He completed 1 year, 3 months, and 16 days, with 16 days excess leave, of his 3-year contractual obligation. b. In 1973, U.S. Army initiated the Expeditious Discharge Program. It gave commanders the opportunity to separate unproductive Soldiers who had completed at least 6 months but less than 36 months of active duty and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army. The program required Soldiers to voluntarily accept discharge and they could receive either an honorable or general discharge. 15. 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: 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 and length of service, the frequency and nature of his misconduct and record of counseling, his separation packet and the reason for his separation under the Expeditious Discharge Program. The Board found insufficient in-service evidence of mitigating factors and the applicant did not provide evidence of post-service achievements or letters of reference on 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. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :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 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 Separation – Enlisted Personnel) in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member's current enlistment of current period of service with due consideration for the member's age, length of service, grade, and general aptitude. b. Paragraph 5-31 (Expeditious Discharge Program) provides commanders could separate Soldiers under this program when they demonstrated they could/would not meet the Army's accepted standards for enlisted personnel, based on one or more of the following: having a poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. They had to have served at least 6, but not more than 36 months. Soldiers were not separated unless they voluntarily accepted discharge, and they could receive either an honorable or an under honorable conditions (general) character of service. 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. 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, 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. 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) AR20210006045 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210006045 5 ABCMR Record of Proceedings (cont) AR20210006045 4