IN THE CASE OF: BOARD DATE: 29 October 2020 DOCKET NUMBER: AR20200002224 APPLICANT REQUESTS: The applicant requests an upgrade of his general under honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) 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 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 voluntarily filed for a Chapter 13 discharge. He had no record of wrongdoing while enlisted. 3. On 30 October 1972, he enlisted in the Regular Army for a term of 3 years at the age of 18 years old. After completing initial entry training, he was assigned to Fort Campbell, KY, as a Fork and Load Operator. 4. His record is void of a separation packet. His record shows: a. In connection with his administrative separation proceedings on 18 March 1974, the applicant underwent a medical status evaluation. (1) DA Form 3822-R (Report of Mental Status Evaluation), shows he was found to have no significant mental illness; he was mentally responsible; he was able to adhere to the right; he had the mental capacity to understand and participate in board proceedings; and he met the retention standards prescribed in Army Regulation (AR) 40-501 (Medical Services – Standards of Medical Fitness). (2) SF 93 (Report of Medical History) shows the applicant indicated he was in good health and among other conditions, he had a history of or at the time, frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort. The doctor commented ?All above noted to residual.? (3) SF 88 (Report of Medical Examination) shows the examiner found his clinical evaluation was normal and noted for item 32 (anus and rectum (Hemorrhoids, Fistulae, Prostate, if indicated), digital rectal W. N. L. (within normal limits) and item 39 (Identifying Body Marks, Scars, Tatoos), tattoos on the arm. b. On 22 March 1974, the applicant’s immediate commander notified the applicant that he was initiating separation actions against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13 for unsuitability. The commander stated in previous counseling sessions, the applicant disclosed to the commander that he was very dissatisfied with the regimentation of military life. The commander observed that the applicant felt oppressed by military authority and found it necessary to object to many directives and circumstances connected with military life and duty performance. Although he had not committed a punishable offense toward military rule, the commander believed he would eventually put himself in jeopardy because of his attitude against the Army. For the sake of others being influenced by his opposition to military authority, as well as for his own sake, and because he requested discharge from active duty, the commander submitted the request for his separation for the good of the service. c. The applicant acknowledged he had been notified of the pending separation action against him and he had been advised by counsel of the basis for the contemplated action, understood his rights, he waived consideration of his case before a board of officers, and elected not to submit a statement in his own behalf. d. His chain of command recommended approval of the recommendation for separation. e. On 12 April 1974, the appropriate commander approved the recommendation for separation, directing the applicant be issued a General Discharge Certificate. f. On 19 April 1974, the applicant was discharged under the provisions of AR 635- 200, chapter 13-5b(3), unsuitability-apathy. His service was characterized as under honorable conditions. He completed 1 year, 5 months, and 20 days of his 3-year contractual obligation. His DD Form 214 shows he was awarded or authorized the National Defense Service Medal and the M-16 Rifle Marksman Marksmanship Qualification Badge. g. His DA 20 (Enlisted Personnel Qualification), shows the applicant received excellent ratings for conduct and efficiency from 6 November 1972 to 15 January 1973 and 18 January 1973 to 9 March 1973. 5. AR 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, established policy and prescribed procedures for separating Soldiers for unfitness and unsuitability and paragraph 13-5b(3), unsuitability, provided an individual would be subject to separation if he or she exhibited behaviors of apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively. An individual separated because of unsuitability will be furnished an honorable or general discharge certificate as warranted by his military record. 6. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency determination 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 behaviors described by his commanding officer, 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, 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 Army Board for Correction of Military Records (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. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provided for the separation of enlisted personnel from the Regular Army. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. b. Chapter 13 established policy and prescribed procedures for separating Soldiers for unfitness or unsuitability. Paragraph 13-5b, unsuitability, provided, in pertinent part, an individual would be subject to separation if he or she exhibited behaviors of apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively. While lack of appropriate interest or other defective attitudes may be manifested in conjunction with physical defects or mental or organic diseases, including psychoneurosis, these traits are not necessarily produced by the physical or disease process. On the other hand, individuals considered for elimination may attempt to excuse immature, inadequate, and undisciplined behavior on the basis of minor or nondisabling illnesses. The presence of a physical or mental disease or defect- producing impairment of function insufficient to warrant separation under the provisions of AR 685-40 (Physical Evaluation for Retention, Retirement, or Separation) and related regulations is no bar to discharge for unsuitability. An individual separated because of unsuitability will be furnished an honorable or general discharge certificate as warranted by his military record. 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/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) AR20200002224 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200002224 5 ABCMR Record of Proceedings (cont) AR20200002224 4