IN THE CASE OF: BOARD DATE: 24 August 2023 DOCKET NUMBER: AR20230000716 APPLICANT REQUESTS: Upgrade of his under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge) 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 that he would like an upgrade to receive a better job. He is praying to leave behind a good discharge record for his family members and children. 3. The applicant enlisted in the Regular Army on 9 May 1978 for 3 years. Upon completion of training, he was awarded military occupational specialty 05C (Radio Teletypewriter Operator). 4. On 29 December 1978, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty, on three separation occasions. His punishment included reduction to the grade E-1 (suspended), forfeiture of $97.00 pay for one month, and 14 days extra duty. 5. On 27 April 1979, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for committing assault on a Soldier, thereby intentionally inflicting grievous bodily harm, on or about 10 April 1979. His punishment included reduction to the grade E-1, and forfeiture of $97.00 pay for one month. 6. On 22 October 1980, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty, on or about 16 September 1980; and for disobeying a lawful order from his superior noncommissioned officer, on or about 29 September 1980. His punishment included 14 days extra duty and restriction. 7. The applicant's immediate commander notified the applicant on 4 November 1980, 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, Expeditious Discharge Program (EDP). As the specific reason, the commander cited the applicant's continued lack of the fundamental characteristics and judgment required of any Soldier. Despite continuing counseling efforts and the administration of NJP, his actions had continued in a negative direction and were detrimental to the order and discipline of the unit. 8. The applicant acknowledged receipt of the separation notification on 26 November 1980. He was advised of the rights available to him and the effect of waiving his rights. He voluntarily consented to the separation and declined to submit a statement in his own behalf. 9. The applicant's commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, paragraph 5-31, with an under honorable conditions (general) discharge. 10. On 4 December 1980, the applicant underwent a medical examination. He was deemed qualified for separation. 11. By legal review on 5 December 1980, the applicant s separation action was found to be legally sufficient for further processing. 12. Consistent with the chain of command s recommendation, the separation authority approved the recommended action on 8 December 1980, and directed the issuance of a DD Form 257A (General Discharge Certificate). 13. The applicant was discharged on 23 December 1980. 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 5-31h(2), by reason of EDP - failure to maintain acceptable standards for retention. His service was characterized as under honorable conditions (general). He completed 2 years, 7 months, and 15 days of net active service this period. 14. In reaching its determination, the Board can consider the applicant s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense 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 found insufficient evidence of in-service mitigating factors and 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 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 :xx :xx :xx 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 5-31 provided for the discharge of enlisted personnel who had completed at least six 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 provision of the 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 Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NR) 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) AR20230000716 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1