IN THE CASE OF: 

		BOARD DATE: 7 March 2023

		DOCKET NUMBER: AR20220008005


APPLICANT REQUESTS: upgrade of his under honorable conditions (general) 
discharge to honorable.

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 he served his country. He got into a simple argument with his 
squad leader and the Army offered him a discharge. He did receive expert 
marksmanship with the rifle. He loves his country, and is currently dying of liver cancer 
and hopes to get his discharge upgraded so he can receive a military funeral to ease his 
family’s expense. He did put his life on the line to protect his country. He was very 
young while serving in the Army. If there had been a war at the time of his service, he 
would never have gotten out to the Army. 

3.  The applicant enlisted in the Regular Army on 1 July 1976 for three years. The 
applicant was 17 years old. His military occupational specialty was 11B (Infantryman). 

4.  The applicant accepted non judicial punishment under Article 15 of the Uniform Code 
od Military Justice at Fort Ord, CA, on 7 April 1977 for disrespectful language to a 
superior noncommissioned officer (NCO) on or about 4 April 1977. His punishment 
consisted of forfeiture of $50.00 and extra duty.

5.  The applicant’s immediate commander notified the applicant he was initiating action 
to discharge him under the provisions of Army Regulation (AR) 635-200 (Personnel 
Separations-Enlisted Personnel), paragraph 5-37, Expeditious Discharge Program 
(EDP). He recommended the applicant be issued a General Discharge Certificate. The 
reasons for his actions were: repeated lack of respect towards superiors; lack of regard 
for orders and apparent lack of ability to improve and adjust to military life. The applicant 
had a negative attitude towards the Army and went out of his way to demonstrate it. His 
performance as a Soldier both in garrison and the field was well below standard. The 
applicant acknowledged receipt of the notification.

6.  The applicant consulted with counsel and was advised of the reason for separation 
and the rights available to him. The applicant voluntarily consented to the discharge. He 
understood if he was issued a General Discharge, he may encounter substantial 
prejudice in civilian life. He did not submit a statement in his behalf. 

7.  The applicant's commander formally recommended his separation from service 
under the provisions of AR 635-200, paragraph 5-37. He noted the applicant had been 
counseled on several occasions for: actions, attitude and conduct, failure to repair, 
absent from place of duty on six occasions and disrespect to an NCO. The counseling 
failed to produce the desired results. 

8.  The separation authority approved the recommended discharge on 28 June 1977, 
for failure to meet acceptable standards for continued military service and directed the 
applicant receive a General Discharge Certificate.

9.  A Statement of Medical Condition, dated 6 July 1977, shows the applicant had 
undergone a separation medical examination on 26 May 1977 and there had been no 
change in his medical condition since his last separation examination. 

10.  The applicant was discharged on 6 July 1977. His DD Form 214 (Report of 
Separation from Active Duty) shows he was discharged under the provision of AR    
635-200, paragraph 5-37, Expeditious Discharge Program. His characterization of 
service was under honorable conditions (general) (Separation Code JGH, Reentry Code 
3). He completed 1 year and 6 days of net active service. He was awarded or 
authorized the Expert Marksmanship Qualification Badge with Rifle Bar.

11.  Expeditious Discharge Program (EDP) provides that members who have 
demonstrated 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.






12.  In reference to receiving military burial benefits, decisions of the Veterans 
Administration are solely within the jurisdiction of that agency. While the Army Board for 
Correction of Military Record can correct errors in an individual's military records it has 
no authority to direct or influence decisions by other agencies.

13.  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.

BOARD DISCUSSION:

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 evidence of record shows the applicant was 
discharged under the Expeditious Discharge Program with a general characterization of 
service after completing 1 year and 6 days of active service. The applicant does not 
provide any evidence of post-service achievements or letters of reference to support 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, 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 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 5-37 of the regulation in effect at the time provided for the discharge of 
enlisted personnel whose performance of duty, acceptability for service, and potential 
for continued effective service fall below the standards required for enlisted personnel.  
The philosophy for this policy is that commanders will be able to anticipate and preclude 
the development of conditions which clearly indicate that Soldiers concerned are 
becoming problems to an extent likely to lead to board or punitive action which could 
result in their separation under conditions which would stigmatize them in the future.  No 
individual would be discharged under this program unless the individual voluntarily 
consented to the proposed discharge.  Individuals discharged under this provision of the 
regulation were issued either a general or honorable discharge.

	c.  Expeditious Discharge Program (EDP) 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 
discharged.

*	Poor attitude
*	Lack of motivation
*	Lack of self-discipline
*	Inability to adapt socially or emotionally
*	Failure to demonstrate promotion potential

3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military Discharge Review Boards and BCM/NRs on 25 July 2018, 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 
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)	AR20220008005


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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