IN THE CASE OF: BOARD DATE: 2 October 2020 DOCKET NUMBER: AR20200002244 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR2002083208 on 14 August 2003. Specifically, he requests his undesirable discharge be upgraded. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 25 November 2019 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR2002083208 on 14 August 2003. 2. The applicant states he took the plea at the time because he intended to correct his failures. He had a complete disrespect for the uniform at the time. He was informed at the time by the Judge Advocate General (JAG) officer assigned to him that he would have 12 months to correct his decision after his separation from the Army. This information was totally incorrect and misleading. He did go on as a productive civilian, got his Emergency Medical Technician (EMT) certification from the State of New York and worked with the Trauma Team One in Woodhull Hospital, where he received several awards. He was a first responder during the attacks on the World Trade Center as a rescue paramedic. He has been certified and retired due to pulmonary injuries but he would do it all over again. He is asking for an opportunity to continue his life without this "BCD-212A" on his record. 3. The applicant enlisted in the Regular Army on 28 April 1968. 4. Before a special court-martial on or about 13 January 1969, at Fort Bragg, North Carolina, the applicant was found guilty of being absent with leave (AWOL), from on or about 16 December 1968 until on or about 6 January 1969. 5. Before a special court-martial on or about 12 November 1969, at Fort Dix, New Jersey, the applicant was found guilty of being AWOL, from on or about 8 February 1969 until on or about 18 September 1969, and of being disrespectful in language to a noncommissioned officer, on or about 15 October 1969. 6. The applicant was given a mental health evaluation on 5 December 1969, where he was cleared for any action deemed appropriate by the command. The psychiatrist recommended an expeditious discharge and separation under other than honorable conditions (UOTHC). 7. A 1AA Form 653-1 (Individual Statement – Separation under AR [Army Regulation] 635-212 [Personnel Separations – Unfitness and Unsuitability], dated 18 February 1970, shows the applicant acknowledged he had been advised by counsel of the contemplated action to separate him for unfitness and his rights. The applicant waived all of his administrative rights. 8. The commander of the Special Processing Detachment formally recommended on 26 February 1970 that the applicate be discharged under the provisions of Army Regulation 635-212, by reason of unfitness, and that he be issued a DD Form 258A (Undesirable Discharge Certificate). The Commander indicated the applicant had been AWOL on four occasions, with a total of 257 days of lost time. The Commander also recommended further counseling or rehabilitation efforts be waived. 9. The separation authority waived the requirement for further counseling and rehabilitation and approved the applicant's discharge on 17 December 1971, under the provisions of Army Regulation 635-212, by reason of unfitness, and directed that he receive an Undesirable Discharge Certificate. 10. Special Court-Martial Orders Number 622, issued by Headquarters, Special Troops, Fort Dix, Jersey on 18 March 1970, notes the applicant had a third special court-martial on or about 17 December 1969. The charges and actual court-martial orders are not of record; however, it is noted that the sentence included confinement for a period of six months. This period of confinement, along with prior periods of unremitted or executed confinements, were to be remitted effective 23 March 1970. 11. The applicant was discharged on 25 March 1970, under the provisions of Army Regulation 635-212, by reason of unfitness. The DD Form 214 he was issued confirms his service was characterized as UOTHC and that he was issued an Undesirable Discharge Certificate. 12. The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition. 13. The ADRB denied the applicant's request for an upgrade on 23 July 1975. 14. The ABCMR denied the applicant's request for an upgrade on 30 March 2010. 15. The Board should consider the applicant's statement about his post-service contributions and service for consideration of granting relief 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 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 insufficient 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 :XXX :XXX :XX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR2002083208, dated 14 August 2003. 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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 3. Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness and unsuitability. It provided, in pertinent part, that individuals would be discharged by reason of unsuitability due to apathy (luck of appropriate interest), defective attitudes, and inability to expend effort constructively. This regulation prescribed that a UOTHC discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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) AR20200002244 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200002244 5 ABCMR Record of Proceedings (cont) AR20200002244 4