IN THE CASE OF: BOARD DATE: 4 April 2023 DOCKET NUMBER: AR20220008450 APPLICANT REQUESTS: An upgrade of his under honorable conditions (general) discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Report of Separation from Active Duty) 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 would have loved to stay in the Army. The first thing he experienced in the military was racism which was heartbreaking. He was on post at the swimming pool and heard Caucasian people say, "I’m not getting in the pool with those ni****s." He was distraught and very upset, and this made him want to leave the Army. He wanted to go back home to his family and did not care what anyone said, as his mind was made up. 3. The applicant enlisted in the Regular Army on 23 October 1975, for a 3-year service obligation. Upon completion of training, he was awarded military occupational specialty (MOS) 16P (Chaparral Crewman). 4. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * 19 November 1975, for wrongfully use provoking language towards another Soldier, on or about 18 November 1975 * 4 March 1976, without authority absenting himself (AWOL), from on or about 29 February 1976 to on or about 1 March 1976 * 8 March 1976, for having knowledge of restriction and breaking said restriction, on or about 6 March 1976; his punishment included reduction to Private/E-1 * 4 June 1976, for being AWOL from on or about 29 March 1976 through on or about 23 May 1976; his punishment included reduction to E-1, forfeiture of $84.00 pay, seven days of extra duty and restrictions 5. The applicant was formally counseled on 29 June 1976 for disturbances in the barracks, uniform not being up to standards, and mouthing back when spoken to. 6. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ on 6 July 1976, for being disorderly in the hospital emergency room on or about 27 June 1976. His punishment included reduction to E-1, forfeiture of $36.00 pay, seven days of extra duty and restriction. 7. The applicant was formally counseled on five separate occasions between 9 July and 21 July 1976, for reasons including but not limited to: * failure to follow orders, insubordination towards superior officers and noncommissioned officers (NCO) * failure to prepare * missing formation and failing to report to work * conduct, attitude, and behavior in formation 8. His record contains four written statements by his squad leader, platoon sergeant, and fellow soldiers in his unit which attest to the applicant being late to formations and being disrespectful in language to a NCO. 9. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ on 3 August 1976, for being AWOL from on or about 28 July 1976 to on or about 2 August 1976. 10. On 3 August 1976, the applicant's immediate commander notified the applicant that he was initiating actions to separate him from active service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-37, under the Expeditious Discharge Program (EDP), with an under honorable conditions (general) discharge. As the specific reasons for the proposed action, his commander noted the applicant’s poor attitude, lack of self-discipline, and inability to adapt emotionally. 11. The applicant’s record is void of a complete separation packet; however, his DD Form 214 shows he was discharged on 24 August 1976, under the provisions of AR 635-200, paragraph 5-37. His narrative reason for separation was expeditious discharge program, with separation code JGH, His service was characterized as under honorable conditions (general). He completed 7 months and 25 days of net active service. 12. 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. 13. 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: 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, following a series of misconduct that includes AWOL, being disorderly, breaking restriction, and other offenses. He was issued a general characterization of service and completed 7 months and 25 days of active service. 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, 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. The version in effect at the time provided that: 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. Paragraph 5-37 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. 3. 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. 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// ABCMR Record of Proceedings (cont) AR20220008450 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1