IN THE CASE OF: BOARD DATE: 22 February 2022 DOCKET NUMBER: AR20210013765 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 20 May 2021 * DD Form 214 (Report of Separation from Active Duty), for the period ending 2 March 1978 * Character Reference Letter, dated 23 May 2021 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 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: a. He was discharged after repeatedly being called derogatory and racist names by some of his superiors. The African-American soldiers were grouped together and verbally assaulted. He was called the "N" word. He was referred to as other derogatory names and he still suffers today. He wanted to remain in the Army but he was mentally and physically down because his skin was black. He has been able to provide for his family after his discharge but he has many sleepless nights because of the mental anguish and abuse he endured. b. He felt that his white counterparts hated him because he was black. He loves his country and would have been honorably discharged. He endured discrimination and abuse from the date he entered until he was discharged. He did not believe he would be given fair consideration; however, he thinks that this country has come a long way and he believes that he will get the justice he is seeking so he can die in dignity. 3. The applicant enlisted in the Regular Army on 15 October 1975. 4. The applicant received non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: * on 12 February 1976, for being disrespectful in language to his squad leader and making an obscene gesture to his class leader, on or about 10 February 1976 * on 26 April 1976, without authority leaving his appointed place of duty, on or about 23 April 1976 and on or about 25 April 1976 * on 26 August 1976, for failing to go to the time prescribed to his place of duty, on or about 14 August 1976 * on 10 June 1977, for having knowledge of a lawful order given by a commissioned officer, failing to obey the lawful order, on or about 5 June 1977 * on 11 August 1977, for failing to go at the time prescribed to his appointed place of duty, on or about 1 August 1977 5. The applicant underwent a separation medical examination on 10 January 1978. There were no significant changes in his medical condition. 6. The applicant received non-judicial punishment (NJP) on 11 January 1978, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for willfully destroying a screen on the rear of building 5938, of a value of about $9.80, military property of the United States, on or about, on or about 21 December 1977. 7. The applicant was interviewed by the company chaplain on 24 January 1978. He strongly agreed that the applicant should receive a Chapter 5 discharge, which he considered mutually beneficial to the Army and the applicant. He disagreed with the need to process a Chapter 13 [Unsatisfactory Performance] at the time. 8. The applicant's immediate commander notified the applicant on 24 February 1976 that he was initiating actions to release him from active duty under the provisions of Army Regulation 635-200, paragraph 5-31 (Expeditious Discharge Program (EDP). His commander cited, as the specific reason for the proposed separation, the applicant's continuous misconduct, which demonstrated that he was incapable of obeying the rules and regulation imposed upon him by the U.S. Army. He had been punished on four separate occasions while serving with the unit. He could not accept authority, adapt to military life, or conduct himself as a Soldier. All attempts to rehabilitate him had failed despite the numerous efforts of his chain of command. It was in his best interest and that of the U.S. Army that he be expeditiously discharged. The applicant's commander advised him of the rights available to him and of the effect of any action taken by him to waive his rights. 9. The applicant acknowledged receipt of the proposed separation memorandum on 27 February 1978 and further acknowledged that he may encounter substantial prejudice in civilian life if he received an under honorable conditions discharge. He voluntarily consented to the separation on the same date. He elected not to submit statements in his own behalf. 10. Consistent with the commander’s recommendations, the separation authority approved the applicant's separation from active duty. He directed that the applicant be issued a DD Form 257A (General Discharge Certificate). 11. The applicant was released from active duty on 2 March 1978, under the provisions of Army Regulation 635-200, paragraph 5-31. He was credited with completing two years, four months, and 18 days of total active service. His DD Form 214 confirms his service was characterized as under honorable conditions (general). 12. The applicant provides a character reference letter that attests to: a. He was a product of a working poor African-American who migrated from the south for a better life. He realized his dream of being in the military was over and she comforted him as he cried. She was afraid that if he stayed he would be killed. He was in a place where black me were not wanted. He was told by Army officer that he could get killed during some of the military exercises. After much praying, crying and lamenting he decided to take the general discharge. After his discharge, the first several years came with a lot of emotional pain and sleepless nights. He eventually moved on and accepted the fact of what happened. She knows of his seemingly endless emotional pain. b. He went on to complete three years of college. They raised three children and now has six grandchildren. He ended up becoming a rail operator for the Chicago Transit Authority. He made a decent living but he often looks back over his life and says, “I should have let them kill me.” It has been difficult and he always seems to have a chip on his shoulder. He often said that he just wanted to be treated fairly and be given a real chance to show them what he could do. His sleepless and restless nights have started again. He talked to a friend and learned he could ask for an upgrade to his discharge. He has not been in contact with anyone from his unit in more than 40 years and she is a witness to the pain he has suffered. He is an upstanding and honorable citizen and she believes that he is entitled to have his discharge upgraded from general to honorable. 13. The Board should consider the applicant's statement 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 wass 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 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 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 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 5 provided for the EDP. 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 could be discharged under the EDP. It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary. Soldiers had to consent to separation under this program in order for commanders to separate them under the provisions of the EDP. Otherwise, a commander was required to separate Soldiers under other provisions of the regulation, which in most cases resulted in an under other than honorable conditions discharge. Individuals discharged under this provision of the regulation were issued either a general or honorable discharge. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210013765 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1