IN THE CASE OF: BOARD DATE: 21 November 2022 DOCKET NUMBER: AR20220003843 APPLICANT REQUESTS upgrade of his under honorable conditions (general) discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 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, U.S. 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 upon his return from Germany, he was a good Soldier. His lieutenant left, and he was transferred to a different platoon. Prior to being transferred, he had his leave approved. However, upon transferring to the new platoon, the leave was not honored. He then became disruptive, and his attitude changed. The leave issue made him upset and disappointed because he had planned to make the military a career. Throughout the years, he has worked hard to better himself and he is presently retiring as an engineer. He was young back then; yet he feels that it was unjust for him to have served the military and not received an honorable discharge. 3. Review of the applicant’s service records shows: a. He enlisted in the Regular Army on 6 May 1976, and he held military occupational specialty 11B (Infantryman). b. On 3 December 1976, at Fort Hood, TX, he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for twice disobeying a lawful order and twice failing to go at the time prescribed to his appointed place of duty. c. On 3 June 1977, also at Fort Hood, he again accepted NJP under Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty. d. He served in Germany from 21 September 1977 to 15 March 1978. While in Germany, he accepted NJP under Article 15 of the UCMJ on 24 January 1978, failing to obey an order. e. On 5 July 1978, he was reported absent without leave (AWOL) by his Fort Hood unit. However, he returned on 10 July 1978. As such, on 11 July 1978, he accepted NJP under Article 15 of the UCMJ for being AWOL from 5 to 10 July 1978. His punishment included a reduction to private/E-1. f. On 29 August 1978, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), paragraph 5-31 (Expeditious Discharge Program (EDP)), due to poor attitude, lack of discipline, inability to accept instructions, and directions clearly substandard performance. The commander indicated he had counseled the applicant 4 times concerning his deficiencies. The immediate commander recommended a general discharge. g. The applicant acknowledged notification of the proposed separation action and consulted with legal counsel. He was advised of the basis for the contemplated separation action under the provisions of paragraph 5-31 of AR 635-200, the effect on future enlistments in the Army, the possible effects of a general discharge, and of the procedures and rights that were available to him. He acknowledged he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life. He consented to this discharge and declined making a statement in his own behalf. h. After this action, his immediate commander initiated separation action against him under the EDP. The immediate commander recommended a General Discharge Certificate. i. On 29 August 1978, the separation authority approved the discharge under the provisions of AR 635-200, paragraph 5-31 and directed the applicant be furnished a General Discharge Certificate. On 25 September 1978, the applicant was discharged accordingly. j. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of paragraph 5-31 of AR 635-200 by reason of "EDP­failure to maintain acceptable standards for retention" with an under honorable conditions (general) discharge. He completed 2 years, 4 months, and 15 days of active service. k. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 4. By regulation (AR 635-200), 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 EDP. No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge. 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 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 of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board agreed the applicant did not deny the misconduct nor did he provide evidence of mitigating factors. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh a clemency determination. Based upon 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 : :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. REFERENCES: 1. Title 10, U.S. 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 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 EDP. 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. Paragraph 3-7a provides that 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. 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//