IN THE CASE OF: BOARD DATE: 8 February 2023 DOCKET NUMBER: AR20220002267 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge to an honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record), 15 November 2021. 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, he was told to wait 6 months to change his discharge to honorable. His is getting ready to retire and wishes to have it changed to honorable. 3. The applicant provides his application with a written statement. 4. A review of the applicant's service records shows: a. On 22 August 1977, he enlisted in the Regular Army for a period of 4 years at age 20. He completed basic combat training, he completed Advanced Individual Training and he was awarded military occupational specialty (MOS) 11B (Infantryman). b. On 5 January 1978, he was assigned to B Battery, 1st Battalion, 41st Field Artillery, Germany, and on 22 February 1978 he was promoted to private 2/E-2. c. On 1 March 1978, he was awarded primary MOS 11H (Heavy Antiarmor Weapon Crewman). d. On 4 August 1978, he accepted nonjudicial punishment (NJP) under provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for absenting himself from his unit, Battery B, 1st Battalion, 41st Field Artillery, Schwabisch Gmund, Germany on or about 0630 hours, 1 August 1978, and remained absent until on or about 1930 hours, 2 August 1978. His punishment consisted of forfeiture of $90.00 pay for 1 month, restriction for 14 days, and reduction to private/E-1 (suspended for 90 days). He did not appeal this punishment. e. On 25 January 1979, he accepted nonjudicial punishment (NJP) under provisions of Article 15 of the UCMJ, for failing to go at the time prescribed to his appointed place of duty at Battery formation while assigned to Battery B, 1st Battalion, 41st Field Artillery, Schwabisch Gmund, Germany. His punishment consisted of forfeiture of $75.00 pay for 1 month, 14 days extra duty, and reduction to private/E-1. He did not appeal this punishment. f. On 8 February 1979, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200, paragraph 5-31 (Expeditious Discharge Program), he notified him of his rights, recommended he be furnished a General Discharge Certificate. The reasons for his proposed action were on 4 August 1978, he received NJP for being absent without leave, on 26 January 1979, he received NJP for failure to repair (being absent from Battery formation), and on 4 January 1979 he was reprimanded for recalcitrant attitude by formal counseling. g. On 28 February 1979, he acknowledged receipt of his commander's notification of his proposed discharge from the U.S. Army under the provisions of Army Regulation 635-200, paragraph 5-31. He consulted with counsel and was advised of the basis of the contemplated separation and voluntarily consented to this discharge. He elected not to submit statements in his own behalf. He understood that he may expect to encounter substantial prejudice in civilian life if a discharge general, under honorable conditions was issued to him. He further understood that as the result of issuance of a discharge general, under honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. h. On 10 March 1979, his immediate commander recommended his separation under authority of Army Regulation 635-200, paragraph 5-31, under the expeditious discharge program, and recommended he be issued a General Discharge Certificate. This memorandum shows he received three separate instances of NJP under the provisions of Article 15 of the UCMJ but the copy of the third NJP instance, 28 December 1978, is illegible. i. The separation authority (Commanding Officer, Headquarters, 1st Battalion, 41st Field Artillery, Schwabisch Gmund, Germany), approved and directed the applicant's discharge under provisions of Army Regulation 635-200, paragraph 5-31, and directed issuance of a General Discharge Certificate. He was not transferred to the U.S. Army Reserve (Ready Reserve). j. On 16 April 1979, he was discharged accordingly. His DD Form 214 (Report of Separation for Active Duty) shows he was released under the provisions of Army Regulation 635-200, paragraph 5-31, with a character of service of general, under honorable conditions and a separation program designator JGH. He completed 1 year, 7 months, and 24 days of active service. He was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16). 5. There is no evidence of record showing he applied to the Army Discharge Review Board for an upgrade of his discharge within the 15-year statute. 6. 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: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition and available military records, the Board found insufficient evidence of in-service mitigating factors to overcome the misconduct. The Board noted, the applicant provided insufficient evidence of post-service achievements and character letters of support to show honorable conduct that might have mitigated the discharge characterization. The Board determined the applicant’s service record exhibits numerous instances of misconduct during his enlistment period. 2. The Board noted, the applicant was discharged under the expeditious discharge program and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. Therefore, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X 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 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provided the authority for separation of enlisted personnel upon expiration term of service, prior to ETS, and the criteria governing the issuance of honorable, general, and undesirable discharge certificates. a. 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 5-31 provides for separating enlisted members under the expeditious discharge program (EDP). This program provides that members who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army because of existence of one or more of the following conditions may be separated when they have failed to respond to counseling (DA Form 4856, General Counseling Form). The criteria in section VIII, chapter 1, will govern whether the member will be released from active duty with transfer to the IRR, or be discharged. A discharge general, under honorable conditions is normally appropriate for a Soldier discharged under this chapter. * Poor attitude * Lack of motivation * Lack of self-discipline * Inability to adapt socially or emotionally * Failure to demonstrate promotion potential d. No member will be separated under this program unless the Army member voluntarily consents to the proposed separation. The Army member's acceptance of separation may not be withdrawn after the date the separation authority approves the separation. 4. Army Regulation 635-5-1 (Separation Program Designators) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation code to be entered on the DD Form 214. It identifies the separation code "JGH" as the appropriate code to assign to enlisted personnel administratively discharged under the provisions of Army Regulation 635-200, paragraph 5-31, based on the Expeditious Discharge Program for failure to maintain acceptable standards for retention. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220002267 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1