IN THE CASE OF: BOARD DATE: 13 September 202 DOCKET NUMBER: AR20220003911 APPLICANT’S REQUEST: an upgrade of his under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 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 treated unjustly. He completed the retraining brigade and was still given a general discharge. He has been out for over 30 years without any incidents. 3. The applicant enlisted in the Regular Army on 22 July 1980, for 3 years. Following completion of required training, he was awarded military occupational specialty 36K (Tactical Wire Operations Specialist). 4. On 19 May 1981, he accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for unlawfully striking another Soldier in the face with a closed fist and striking Mrs. with an open hand, on or about 7 March 1981. His punishment included forfeiture of $35 pay for one month and seven days extra duty. 5. On 31 August 1981, he accepted NJP under Article 15, of the UCMJ for disobeying a lawful order and being disrespectful in language to his superior noncommissioned officer on or about 18 July 1981; participating in a breach of peace by engaging in a fight; unlawfully striking a female on the head on or about 19 July 1981; wrongful use of marijuana on or about 17 August 1981. His punishment included: * reduction in rank to private (PVT)/E-1 (suspended for 90 days) * forfeiture of $250 for two months * placed in correctional custody for 30 days 6. Before a general court-martial on 20 November 1981, at Grafenwoehr, Germany, the applicant was found guilty of unlawfully grabbing another Soldier by the arm and communicating a threat, on or about 3 October 1981. His sentence included reduction in rank to private/E-1 and confinement at hard labor for 30 days. The sentence was approved on 23 November 1981 and the applicant was reassigned to U.S. Army Retraining Brigade, Fort Riley, KS. 7. On 27 January 1982, the applicant was reassigned to Fort Eustis, VA. 8. On 6 July 1982, the applicant accepted NJP under Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on or about 17 June 1982. He received the following punishment: * reduction in rank to private/E-2 * forfeiture of $135 in pay * placed in correctional custody for 7 days (suspended) 9. On 22 September 1982, the applicant accepted NJP under Article 15 of the UCMJ for conspiring with two other Soldiers to commit larceny and damage property on or about 18 July 1982. He received the following punishment: * reduction in rank to PVT * forfeiture of $276 in pay for one month * seven days extra duty and restriction 10. On 23 September 1982, the applicant's commander notified the applicant that he was initiating actions to separate him from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31, under the Expeditious Discharge Program (EDP), with an under honorable conditions discharge. 11. On the same date, the applicant acknowledged receipt of his commander's notification. He was advised of the rights available to him and the effect of waiving his rights. He voluntarily consented to the separation and elected not to submit a statement in his own behalf. 12. The applicant's commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, paragraph 5-31. The separation authority approved the recommended action on 28 September 1982 and directed the issuance of a DD Form 257A (General Discharge Certificate). 13. Accordingly, the applicant was discharged on 4 October 1982. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31, by reason of failure to meet acceptable standards for retention (EDP). He completed 2 years, 1 month, and 19 days of active service this period. His service was characterized as under honorable conditions (general). 14. 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. a. Army Regulation 635-200 in effect at the time, provided that the EDP would provide for the expeditious elimination of substandard, nonproductive soldiers before board or punitive action becomes necessary. These provisions are intended to relieve unit commanders of the administrative burden normally associated with processing eliminations for cause through administrative separation boards by providing a means to separate such personnel expeditiously before they progress to the point where board or punitive action becomes necessary. b. 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 submitted documents in support of the petition. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief was not warranted. The Board carefully considered the applicant’s 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 was discharged from active duty under the Expeditious Discharge Program (EDP) following a series of misconduct. The applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based on 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 : : : 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, 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 Expeditious Discharge Program (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. Army Regulation 635-200 in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. 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. b. Paragraph 5-31c states that the EDP will provide for the expeditious elimination of substandard, nonproductive soldiers before board or punitive action becomes necessary. These provisions are intended to relieve unit commanders of the administrative burden normally associated with processing eliminations for cause through administrative separation boards by providing a means to separate such personnel expeditiously before they progress to the point where board or punitive action becomes necessary. 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) AR20220003911 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1