ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 September 2019 DOCKET NUMBER: AR20160008698 APPLICANT REQUESTS: upgrade of his discharge under other than honorable conditions (UOTHC). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Army Review Boards Agency (ARBA) letter, dated 12 May 2016 * Self-authored letter, dated 25 May 2016 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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: a. He was young and aggressive when he was in the military and he got into a lot of fights. His chain of command was very racist and recommended him for a UOTHC discharge while white Soldiers that committed the same acts were not disciplined. b. ARBA sent him an acknowledgment letter on 12 May 2016, wherein his middle initial is incorrectly shown as instead of as shown on his application. He would like it to be shown as on future documents for the Board to make a fair review of his application. 3. The applicant enlisted in the Regular Army on 23 February 1966. 4. Multiple DA Forms 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) show he accepted nonjudicial punishment (NJP) on the following dates for the following offenses: * 19 April 1966, for being disorderly in the Fort Gordon, GA, Post Exchange on 17 April 1966 * 13 June 1966, for committing an assault on 10 June 1966 at Fort Lee, VA, by inciting a fist fight between and Private and betting a sum of $5.00 with Private that he could not “whip” Private * 23 September 1966, for unlawfully striking Private First Class twice in the stomach and once in the face with his fist on 13 September 1966 and for breaking restriction by leaving the company area on 19 September 1966 5. U.S. Army Camp Carroll Depot Summary Court-Martial Order Number 9, dated, 2 December 1966, shows he was arraigned and tried before a summary court-martial at Camp Carroll, Korea. He was charged with and found guilty of striking Miss with his fist, striking Mr. by grabbing his neck and stepping on his knee, kicking Mrs. in the stomach with his foot, and willfully and wrongfully damaging two doors, the property of Mr., by kicking them in on 21 November 1966. 6. He was sentenced to perform hard labor without confinement for 15 days, restriction to the limits of Company A, U.S. Army Camp Carroll Depot, for 40 days, and forfeiture of $50.00 per month for 1 month. 7. He again accepted NJP under Article 15 of the UCMJ on the following occasions for the following offenses: * 6 February 1967, for being disrespectful in language toward Sergeant First Class his superior noncommissioned officer, by saying to him “gung-ho m____ f____er” or words to that effect on 2 February 1967 * 7 March 1967, for breaking restriction to the limits of Company A, Camp Carroll Depot, Korea, on 26 February 1967 and violating a lawful general regulation by carrying a spring operated knife on 6 March 1967 8. U.S. Army Camp Carroll Depot Special Court-Martial Order Number 6, dated 11 April 1967, shows he was arraigned and tried by special court martial which convened at Camp Carroll, Korea. He was charged with and found guilty of unlawfully striking on the neck and chest with his hands, striking in the face and neck with his hands, and striking Ms. on the chest and throwing her to the floor on 25 February 1967. 9. He was sentenced to confinement at hard labor for 6 months and forfeiture of $50.00 per month for 6 months. 10. He accepted NJP under Article 15 of the UCMJ on 25 September 1967 for unlawfully striking Private First Class in the face with his fist on 23 September 1967. 11. U.S. Army Camp Carroll Depot Special Court-Martial Order Number 18, dated 9 December 1967, shows he was arraigned and tried before a special court-martial which convened at Camp Carroll, Korea. He was charged with and found guilty of absenting himself from his unit without proper authority on 8 November 1967 and remaining absent until on or about 14 November 1967, incapacitation to properly perform his duties due to intoxication on 28 November 1967. 12. He was sentenced to confinement at hard labor for 6 months and forfeiture of $64.00 per month for 6 months. 13. He again accepted NJP under Article 15 of the UCMJ on 23 October 1968, by disobeying a lawful general order on 13 October 1968, by driving his vehicle 35 miles per hour in a 25 mile per hour zone on 13 October 1968. 14. Headquarters, U.S. Army Infantry Center Troop Command, Fort Benning, GA, Special Court-Martial Order Number 117, dated 20 February 1969, shows he was arraigned and tried at Fort Benning, GA. He was charged with and found guilty of absenting himself from his unit without proper authority from on or about 8 January 1969 until on or about 22 January 1969. He was sentenced to confinement at hard labor for 6 months, forfeiture of $97.00 per month for 6 months, and reduction to the rank/grade of Private/E-1. 15. A Department of Mental Health Service, Fort Benning, GA, memorandum, dated 18 March 1969, shows he was seen by the Department of Mental Health Service on 6 and 13 February 1969 and was cleared psychiatrically for administrative or punitive actions deemed appropriate by his command. 16. His immediate commander requested the applicant’s discharge under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) on an unspecified date. The Commanding General, U.S. Army Infantry Center and Fort Benning, Fort Benning, GA, approved the request on 4 April 1969 and directed the issuance of an Undesirable Discharge Certificate. 17. On 11 April 1969, he was discharged under the provisions of Army Regulation 635- 212 and assigned separation program number 28B (unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities). His service was characterized as UOTHC. His DD Form 214 shows he completed a total of 1 year and 2 days of active military service and accrued 408 days of lost time. 18. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity; the applicant had limited creditable service and insufficient evidence of mitigating circumstances for the serious misconduct. Neither did the Board find sufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. The Board agreed that the applicant’s discharge characterization is appropriate. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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. 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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 3. Army Regulation 635-212(Personnel Separations – Discharge – Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. It stated when separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. An individual was subject to separation for unfitness when one or more of the following conditions existed: * frequent incidents of a discreditable nature with civil or military authorities * sexual perversion, including but not limited to lewd and lascivious acts, indecent exposure, or indecent acts with or assault on a child * drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana * an established pattern of shirking * an established pattern of dishonorable failure to pay just debts * an established pattern showing dishonorable failure to contribute adequate support to dependents, including failure to comply with orders, decrees, or judgments 4. Army Regulation 635-200 (Personnel Separations – General Provisions for Discharge and Release), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Section I (General), paragraph 9, stated an honorable discharge was a separation with honor. The issuance of an honorable discharge was conditioned upon proper military behavior and proficient and industrious performance of duty. b. Section I, paragraph 10, stated a general discharge was a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge. c. Section I, paragraph 11, stated an undesirable discharge was an administrative separation from the service under conditions other than honorable. It was issued for unfitness, misconduct, or security reasons. ABCMR Record of Proceedings (cont) AR20160008698 5 1