IN THE CASE OF: BOARD DATE: 15 August 2022 DOCKET NUMBER: AR20220001144 APPLICANT’S REQUEST: An upgrade of his general discharge, under honorable conditions, to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) * E-mail from the Office of the Chief Legislative Liaison (OCLL)/Privacy Release Form 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 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 1974, his company commander advised him that there was a program called the Expeditious Discharge Program (EDP) and the intent of the program was to allow service members to be discharged early if they did not want to make the military a career. He was told he would receive either an honorable or general discharge at the discretion of the commander. Several people in his unit made application for the program and afterward were told that no one leaving early would get an honorable discharge. He tried to rescind his application because the discharge was more important to him than the few months, he had left [to serve]. But the company commander would not allow him to rescind his application. No derogatory or disciplinary entries were in his file, he never had an article 15 or any other justifiable reason that his discharge should not be upgraded. 3. On 8 September 1972, he enlisted in the Regular Army (RA) for a period of 2 years. He completed the training requirements, and he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantry). Upon completion of training, he was assigned to Germany from 18 February 1973 to 28 August 1974. 4 On 20 December 1973, the applicant underwent a separation medical examination, and he was found qualified for expeditious discharge. 5. On 18 January 1974, the applicant's immediate commander initiated a memorandum advising the applicant of his intent to recommend him for separation from the Army under the provisions of the EDP with a general discharge. The immediate commander stated the reasons for his proposed action were: The applicant’s lack of concern and disinterest toward his duties and the United States Army led the commander to believe he was not acceptable for retention within the Army. The applicant had not shown his superiors that he wished to perform nor initiated a new attitude when counselled concerning his poor performance. The applicant had proven he did not care for military life and voiced his discontent not only verbally, but by an apathetic attitude, and substandard performance. 6. He was also advised the final decision on the type of discharge he would be furnished rested with the discharge authority. If he was furnished a general discharge he may expect to encounter substantial prejudice in civilian life. He was advised of his rights. Additionally, he was advised that he had the right to decline this discharge in which case he may be processed for separation under the provisions of chapter 13, Army Regulation (AR) 600-200. 7. On 18 January 1974, the applicant acknowledged receipt of the notification and voluntarily consented to separation from the Army. He acknowledged he understood that if he were furnished a general discharge under honorable conditions, he could encounter substantial prejudice in civilian life. He further acknowledged that he was provided an opportunity to consult with a Judge Advocate officer. On the same date the applicant provided a statement in which he indicated: a. In view of his current position in the Army and the fact of a poor attitude being dominant, his ties with the military should be terminated. His contribution to his present job in MOS 11B being unsatisfactory, and the impossibility of a job change due to his length of service left, meant only one or two things: He would continue as he had until his “DEROS” [date eligible for return from overseas] with the probability of legal action due to poor performance, or an EDP would be approved. b. He saw no reason for, nor was it his desire to receive a general discharge merely because his beliefs did not coincide with many of those of the Army as it was evident that, “he would not change, i.e., personal advancement and pride.” c. As far as he could see, a humble man would go farther than a proud man and pride was one of the Army’s chief culprits of unrest and discontent. Let it be clear that his intentions were not to change as far as his work goes. d. Again, he stressed his desire for an honorable discharge in that a general may hinder the furthering of his life’s purpose, to do that which was pleasing to God. 8. The applicant’s chain of command recommended approval of the applicant’s general discharge under the provisions of AR 635-200, EDP. 9. On 28 January 1974, the separation authority approved the discharge under the provisions of AR 635-200, due to EDP. 10. Accordingly, on 11 March 1974, he was discharged. The DD Form 214 he was issued at the time shows he completed 1 year, 6 months, and 4 days of active service. His DD Form 214 also shows in: * Character of Service, Under Honorable Conditions [General] * Authority and Reason, Letter, Headquarters Department of the Army “DAPE- MPE-PS, RCS, CSG PA, dated 12 August 1973, SPD 775” [by reason of EDP] 11. AR 635-200 (Personnel Separation – Enlisted Personnel) in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 5-37, discharge for failure to demonstrate promotion potential, of the regulation, in effect at the time, provided for the discharge of enlisted personnel 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 because of the existence of one or more of the following conditions: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. No individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge. Individuals discharged under this regulation were issued either a general or honorable discharge. 12. OCLL provided an e-mail and a Privacy Release Form showing the applicant’s Congressional Representative inquired about expediting the applicant’s request. Congressional Liaison and Inquiries responded, on 15 February 2022. The Board was provided his submissions in its entirety. 13 The applicant contends his company commander advised him, if he did not want to make the military a career, he could be discharged under the EDP with an honorable or general discharge. Later, he was told no one leaving early would get an honorable discharge. He tried to rescind his application because the discharge was more important to him than the few months, he had left to serve. But the company commander would not allow him to rescind his application. No derogatory or disciplinary entries were in his file. He never had an article 15 or any other justifiable reason for his discharge not being upgraded. 14. The applicant was discharged under the provisions of AR 635-200, EDP, with a general discharge, due to an apathetic attitude and substandard performance. He completed 1 year, 6 months, and 4 days of active service. The available evidence shows he voluntarily consented to the discharge, and he was told he would receive a general or honorable discharge, which was at the discretion of the discharge authority. There is no evidence showing he tried to withdraw his voluntary consent or decline the discharge. 15. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 16. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submissions in support of the petition. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered applicant’s contentions, military record and regulatory guidance. One possible outcome was to grant relief as the applicant stated he tried to withdraw from the program and the documentation available for review is void any disciplinary actions that would warrant a general discharge. However, the majority of Board members noted that the applicant had been clearly informed of the terms and conditions of the program and the possible outcomes. Based on the preponderance of evidence available for review, 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 : :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X : :X 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. ADMINISTRATIVE NOTE(S): Not Applicable 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. The Department of the Army began testing the EDP in October 1973. In a message, dated 8 November 1974, the Deputy Chief of Staff for Personnel announced the expansion of the EDP. The program provided for the separation of Soldiers whose acceptability, performance of duty, and/or potential for continued effective service fell below the standards required for retention in the Army. Soldiers could be separated under this program when subjective evaluation of their commanders identified them as lacking qualities for continued military service because of attitude, motivation, self- discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. An honorable or general discharge was required and there has never been any provision for an automatic upgrade of a discharge less than fully honorable. 3. AR 635-200 in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 5-37, discharge for failure to demonstrate promotion potential, of the regulation, in effect at the time, provided for the discharge of enlisted personnel 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 because of the existence of one or more of the following conditions: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. No individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge. Individuals discharged under this regulation were issued either a general or honorable discharge. b. An honorable discharge is a separation with honor. 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. 4. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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) AR20220001144 1 ARMY BOARD FOR THE CORRECTIONS OF MILITARY RECORDS RECORD OF PROCEEDINGS 1