IN THE CASE OF: BOARD DATE: 22 February 2022 DOCKET NUMBER: AR20210010168 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 Review of Discharge) in lieu of DD Form 149 (Application for Correction of Military Record). 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, in effect, he would like his character of service upgraded; he was supposed to submit this within 6 months after separation, but he did not know how. 3. The applicant's service records show: a. On 30 May 1975, the applicant enlisted into the Regular Army for 4 years. The applicant's DD Form 4 (Enlistment Contract – Armed Forces of the United States) lists a birth year that makes him 38 years of age at enlistment, and two sets of handwritten initials (one of which matches the applicant's) are next to the applicant's date of birth. Orders subsequently transferred the applicant to Fort Polk, LA for initial entry training (IET). b. Effective 30 September 1975, the applicant's training chain of command promoted him to private (PV2)/E-2. Upon completion of IET and the award of military occupational specialty 11B (Infantryman), orders assigned the applicant to Fort Hood, TX, and he arrived at his unit, on or about 10 October 1975. c. On 28 June 1976, the applicant accepted nonjudicial punishment, under the provisions of Article 15, Uniform Code of Military Justice, for failing to report to the company formation at the time prescribed. d. On 23 July 1976, the applicant's company commander notified him, in writing, of his intent to separate the applicant with an expeditious discharge. The commander's separation authority was chapter 5 (Separation for Convenience of the Government), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The commander additionally stated his intent to recommend the applicant's general discharge under honorable conditions but noted the final decision rested with the separation authority. (1) The commander identified the applicant's below-listed conduct/behaviors as the reasons for recommending separation: * poor attitude * lack of motivation * lack of self-discipline * failure to demonstrate promotion potential * display of a "quitters attitude" * clearly substandard performance (2) The commander further stated the applicant's leadership had counseled the applicant four times concerning deficiencies. e. On or about 3 August 1976, after consulting with counsel, the applicant acknowledged counsel had advised him of the pending separation action, and the applicant affirmed he voluntarily consented to the proposed discharge action; he additionally opted not to submit statements in his own behalf. f. On or about 13 August 1976, the separation authority approved the commander's separation recommendation and directed the applicant's general discharge under honorable conditions. On 8 September 1976, orders discharged the applicant accordingly; his DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 3 months, and 9 days of his 4-year enlistment contract; the separation authority is paragraph 5-37 (Expeditious Discharge Program (EDP)), AR 635-200. The DD Form 214 additionally reflects the award of a Marksman Marksmanship Qualification Badge. g. At some point prior to September 1985, the applicant requested the Army correct his birth year on his DD Form 214. On 5 September 1985, The Adjutant General, Department of the Army, issued the applicant a DD Form 215 (Correction of DD Form 214 (Certificate of Release or Discharge from Active Duty) showing a birth year that would have made him 17 at his enlistment. 4. The applicant requests the upgrade of his character of service. a. In 1973, U.S. Army Europe initiated the EDP as a test; it gave commanders the opportunity to separate unproductive Soldiers after they had served between 12 and 21 months. A November 1974 message (DTG 111445Z) included changes to chapter 5, AR 635-200, with respect to the EDP, and, in 1975, an HQDA message officially extended this program Army-wide, and added the EDP as paragraph 5-37 to AR 635-200. This last version of the EDP required that Soldiers complete at least 6, but not more than 36 months of continuous active duty and voluntarily accept the discharge. Upon approval, the regulation allowed separation authorities to issue either an honorable or a general discharge. b. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency 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. 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, 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, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-9d (Honorable Discharge) stated an honorable discharge was a separation with honor. Separation authorities were to condition the issuance of an honorable discharge upon the Soldier's proper military behavior and proficient duty performance. A separation authority could character a Soldier's service 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. In 1973, U.S. Army Europe initiated the Expeditious Discharge Program (EDP) as a test; it gave commanders the opportunity to separate unproductive Soldiers after they had served between 12 and 21 months. A November 1974 message added changes to chapter 5, AR 635-200, with respect to the EDP, and, in 1975, an HQDA message officially extended this program Army-wide, and added the EDP as paragraph 5-37, AR 635-200. This last version of the EDP required that Soldiers had completed at least 6, but not more than 36 months of continuous active duty, and the Soldiers had to voluntarily accept discharge; failure to voluntarily accept the discharge meant the separation action had to be halted. The regulation allowed separation authorities to issue either an honorable or a general discharge. 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) AR20210010168 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1