IN THE CASE OF:  
 
  BOARD DATE: 19 September 2023 
 
  DOCKET NUMBER: AR20230001659 
 
 
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 requests upgrade of his under honorable conditions (general) discharge to honorable. 
 
3.  The applicant enlisted in the Regular Army on 3 October 1977 for three years. His military occupational specialty was 76D (Material Supply Specialist).  
 
4.  The applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) on: 
 
• 4 April 1978, for wrongful possession of marijuana on or about 1 April 1978; his punishment consisted of forfeiture of $190.00 per month for two months, extra duty, and restriction 

• 21 December 1978, for failing to obey an order on or about 12 December 1978; his punishment consisted of reduction to private 2/E-2, forfeiture of $150.00 per month for two months (suspended), correctional custody for 30 days 

• 29 January 1980, for without authority, failing to go at the time prescribed to his appointed place of duty on or about 16 January 1980; his punishment consisted of forfeiture of $100.00 per month for one month and extra duty 


 
5.  The applicant's immediate commander notified him that he was initiating actions to separate him from service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), paragraph 5-31, of the Expeditious Discharge Program (EDP) for failure to maintain acceptable standards for retention. As the specific reasons for the proposed action, his commander noted the applicant’s unsatisfactory duty performance coupled with failure to adjust to military standards and supervision. The applicant was advised of the rights available to him. 
 
6.  The applicant did not desire a separation examination on 21 February 1980. 
 
7.  The applicant acknowledged receipt of the separation notification on 9 May 1980. Having been advised by counsel of the basis for the contemplated separation and its effect and the rights available to him. He voluntarily consented to the separation and elected not to submit a statement in his own behalf.  
 
8.  The applicant's commander formally recommended the applicant's separation from service under the provisions of AR 635-200, paragraph 5-31, on 12 May 1980 The commander noted the applicant’s poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, and failure to demonstrate promotion potential. The applicant was counseled on several occasions between 8 February 1980 and 23 May 1980. An under honorable conditions (general) discharge was recommended.  
 
9.  The approval authority approved the recommended discharge on 12 May 1980 and directed the issuance of a General Discharge Certificate. 
 
10.  The applicant was discharged on 23 May 1980. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, Paragraph 5-31h (2), by reason of EDP- failure to maintain acceptable standards for retention. His characterization of service was under honorable conditions. He completed 2 years, 7 months, and 21 days of net active service.  
 
11.  Governing regulation 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. Individuals discharged under this provision of the regulation were issued either a general or honorable discharge. 
 
12.  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: 
 
After reviewing the application and all supporting documents, the Board found that 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 applicant was discharged from active duty under the Expeditious Discharge Program - poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, and failure to demonstrate promotion potential with a general discharge, after having completed 2 year and 7 months of active service. He received a general discharge. The applicant provided insufficient persuasive 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 
 
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. 
 
  9/19/2023

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 (AR) 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.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records (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//