ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 February 2019 DOCKET NUMBER: AR20160015473 APPLICANT REQUESTS: upgrade of this under other than honorable conditions discharge to either general under honorable conditions or honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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: a. While he was on pass during his advanced individual training at Fort Leonard Wood, MO, he and another trainee were confronted by a person who tried to sell them drugs; they immediately called the military police and reported the incident. Later, at company formation, they were commended for their actions. b. Once he reached his permanent duty station, he mentioned what had happened to another Soldier; this Soldier immediately ridiculed him and continued afterward to threaten and harass him. The applicant asserts he was only 17 years old at the time and did not know what to do; he just knew he did not want to get into trouble. Because he was new to the unit, he also did not know how to approach his superiors; he thought they would ridicule him too. He sought reassignment, even asking for airborne school, but it took too long. He then acquired a weapon, but decided this would only make matters worse. c. He felt he was between "a rock and a hard place"; he had joined to Army to escape the violence he experienced in his neighborhood; now he was being confronted with the very same thing. While he recognizes now this was a wrong choice, he decided to run; he was 17, alone, and afraid of ending up in serious trouble. d. He paid the price for being absent without leave (AWOL) and completed the retraining program at the U.S. Army Retraining Brigade (USARB). When he was ready to graduate, his leadership told him he could opt out for a discharge; although he did not fully understand the implications, he chose the discharge. He was young and fully capable of making rash and bad decisions. He contends the quality of his service was good until he started having problems with this other Soldier. He points out, even when he was in confinement, he was able to earn his high school diploma and made it into the honor unit. Based on the foregoing, he maintains his character of service was unjust. 3. The applicant's service record shows: a. He enlisted into the Regular Army on 10 November 1976 at 17 years of age. On 9 March 1977, following completion of initial training, he was assigned to Fort Riley, KS. b. On 25 April 1977, he departed his Fort Riley unit in an AWOL status; on 12 May 1977, he was apprehended and confined at Kirkland Air Force Base. He was placed on a pass to return to his Fort Riley unit; on 17 May 1977, he went AWOL again. He remained absent until 13 June 1977, then went AWOL for a third time on 21 June 1977. He returned to military control on 22 June 1977, transferred to Fort Riley, and was placed in pre-trial confinement. c. On 5 July 1977, while in pre-trial confinement, a member of the staff interviewed him and noted, in effect: * applicant was a 17 year old who was confined pending charges for AWOL; he had 7 months good time prior to being AWOL, with no prior nonjudicial punishments * applicant stated he did not like the Army and wanted out, that was why he went AWOL; the applicant had displayed a history of impulsive behavior and poor judgment d. On 25 July 1977, consistent with his pleas, a special court-martial convicted the applicant of three specifications of AWOL (25 April to 12 May 1977; 17 May to 13 June 1977; and 21 to 22 June 1977). The court sentenced him to 101 days of confinement and forfeiture of $100 per month for 4 months. e. On 9 August 1977, a USARB social worker evaluated the applicant and provided the following: * going AWOL was the first time the applicant had been in trouble; he went home to help out and felt he needed get out of the Army; he indicated he was willing to hit someone or go AWOL again if it would get him a discharge * applicant was a 17 year old who was functioning well within the limits of adolescence; this was his first experience of not having his way and this was a hard adjustment * the social worker believed the applicant would probably leave the military rather than bend a little or be told what to do; he did not meet the criteria for personality disorder * applicant was cleared of any unsuitable conditions under Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 13 (Separation for Unfitness or Unsuitability) f. On 7 September 1977, the applicant's commander prepared a Correctional Progress Note, wherein he stated his recommendation to separate the applicant under chapter 13, AR 635-200, due to misconduct/shirking. He noted the applicant's record reflected an overall unsatisfactory performance rating; he had not responded to the program's supportive efforts and refused to cooperate in any way. Further, the applicant consistently asserted he would not return to duty and wanted out of the Army. While he had the ability to successfully complete training, the applicant refused to do so. On 8 September 1977, the commander affirmed he had informed the applicant of his intent to separate him and advised him of his rights; the applicant acknowledged notification that same day. g. On 9 September 1977, after consulting with counsel, the applicant elected to waive his rights, but chose to submit a statement in his own behalf (his statement is not available for review). Also on 9 September 1977, the commander submitted his recommendation to separate the applicant under the provisions of chapter 13, AR 635-200; he included a document titled, "Resume – Conduct, Attitude, Performance, and Discreditable Acts of [applicant], which detailed the applicant's misbehavior. h. In an undated indorsement, the separation authority approved the commander's recommendation and directed the applicant's discharge under other than honorable conditions. On 17 October 1977, the applicant was discharged accordingly. His DD Form 214 shows he completed 5 months and 13 days of net active creditable service with 175 days of lost time; he was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) and Expert Qualification Badge with Grenade Bar. 4. The separation regulation in effect at the time stated commanders were to take action to separate Soldiers for unfitness when they determined the Soldier would not develop satisfactorily, despite rehabilitative efforts, and/or the Soldier was not amenable to rehabilitation. One of the identified reasons for an unfitness separation was an established pattern of shirking. 5. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The majority of the Board agreed the discharge characterization was warranted for the period of service covered by the DD Form 214. The dissenting member voted to grant relief based upon the applicant’s subsequent military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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 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. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-9d (Honorable) stated an honorable discharge was a separation with honor and was conditioned on the proper military behavior and proficient duty performance of the Soldier. Due consideration was to be given to the Soldier's age, length of service, grade, and general aptitude. b. Paragraph 1-9e (General Discharge), stated a general discharge was a separation from the Army under honorable conditions and was issued to members whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 13 addressed the separation of Soldiers who the commander determined was either unfit or unsuitable for continued military service. Soldiers who displayed an established pattern of shirking could be separated for unfitness. 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. 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. 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. ABCMR Record of Proceedings (cont) AR20160015473 5 1