ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS I BOARD DATE: 12 February 2019 DOCKET NUMBER: AR20160015474 APPLICANT REQUESTS: his under honorable conditions be upgraded to honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 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 certain companies are not recognizing him as a veteran because of his Under Honorable Conditions discharge. As a veteran he doesn’t want to fight for benefits and discounts that he has earned. 3. On 17 January 1975, the applicant enlisted in the Regular Army for two years. He had 11 years of education. He completed basic combat training in February 1975. On 9 June 1975, he completed advanced individual training and was awarded military occupational specialty (MOS) 76S (Vehicle Material Supply Specialist). He went on to train and be awarded a secondary MOS as a 76P (Stock Control & Accounting Specialist) on 14 May 1975. 4. On 7 May 1975, the applicant received non-judicial punishment (NJP) for failing to go to his appointed place of duty on 2 May 1975. 5. On 16 October 1975, the applicant received NJP for derelict in the performance of his duties in that he was found asleep in the office. 6. On 16 December 1975, the applicant’s commander notified him that he was initiating action to discharge him under the provisions of paragraph 5-37, Army Regulation (AR) 635-200 (Expeditious Discharge Program). 7. The reasons for the commander’s proposed actions were: * Failure to contribute effectively to the operation of the unit. * Constantly shirk duties assigned * Failure to report to work on time if at all 8. On 16 December 1975 he acknowledge and voluntarily consented to the proposed discharge. 9. On 19 December 1975, that applicant received a medical examination and was found qualified for separation. 10. On 19 December 1975, the separation authority approved the discharge and directed a General Discharge Certificate (DD Form 257A) be issued. 11. On 5 January 1976, the applicant was discharged accordingly. His DD Form 214 shows he completed 11 months and 19 days. 11. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: JUSTIFICATION: Because mitigating factors were not offered by the applicant, the Board determined that the characterization of service was 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: 1. 2. 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): According to Army Regulation 635-5 administratively correct his DD Form 214 to show his characterization of service as "UNDER HONORABLE CONDITIONS (GENERAL)." ? 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 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 6a(1) of the regulation provided, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. A discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge. b. Paragraph 6a(4) of the regulation provided that members who have established a pattern for shirking were subject to separation for unfitness. A discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge. 3. Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was furnished when the individual had conduct ratings of at least "good," had efficiency ratings of at least "fair," had not been convicted by a general court-martial, and had not been convicted more than once by a special court-martial. The regulation also provided that an individual may, where otherwise ineligible, receive an honorable discharge if he had, during his current enlistment, period of obligated service, or any extensions thereof, received a personal decoration, or was separated as a result of a disability incurred in line of duty. b. A general discharge under honorable conditions was furnished for an individual whose military record was not sufficiently meritorious to warrant an honorable discharge. A discharge under honorable conditions was authorized if an individual had been convicted of an offense by general court-martial or convicted by more than one special court-martial in the current enlistment. However, this decision was discretionary. 4. On 25 July 2018, a memorandum from 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. 1. AR 635-200 (Personnel Separations), in effect at the time, stated: a. An honorable discharge would be furnished when the individual had conduct ratings of at least "good," had efficiency ratings of at least "fair," had not been convicted by a general court-martial, and had not been convicted more than once by a special court-martial. The regulation also provided that an individual may, where otherwise ineligible, receive an honorable discharge if he had, during his current enlistment, period of obligated service, or any extensions thereof, received a personal decoration, or was separated as a result of a disability incurred in line of duty. b. A general discharge under honorable conditions was issued to an individual whose military record was not sufficiently meritorious to warrant an honorable discharge. A discharge under honorable conditions was authorized if an individual had been convicted of an offense by general court-martial or convicted by more than one special court-martial in the current enlistment. However, this decision was discretionary. 3. AR 635-200 was revised on 1 December 1976, following settlement of a civil suit. Thereafter, the type of discharge and the character of service were to be determined solely by the individual's military record during the current enlistment. Further, any separation for unsuitability, based on personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry. In connection with these changes, a Department of the Army Memorandum dated 14 January 1977, better known as the Brotzman Memorandum, was promulgated. It required retroactive application of revised policies, attitudes and changes in reviewing applications for upgrade of discharges based on personality disorders. 4. A second memorandum, dated 8 February 1978, and better known as the Nelson Memorandum, expanded the review policy and specified that the presence of a personality disorder diagnosis would justify upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given. Conviction by general court-martial or by more than one special court-martial was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge. 5. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. This regulation stated that commanders would not take action under this regulation in lieu of disciplinary action solely to spare an individual who may have committed serious misconduct the harsher penalties which may be imposed under the UCMJ. a. Paragraph 3a stated action was taken to separate an individual for unfitness when it was clearly established that: 1) Despite attempts to rehabilitate or develop him or her as a satisfactory Soldier further effort was unlikely to succeed. 2) Rehabilitation was impracticable (as in cases of confirmed drug addiction). 3) An unfitting medical condition was not the direct or substantial contributing case of his or her unfitness. b. Paragraph 4a stated an individual separated by reason of unfitness was furnished an undesirable discharge certificate except that an honorable or general discharge certificate was awarded if the individual being discharged had been awarded a personal decoration or if warranted by the particular circumstances in a given case. c. Paragraph 6a(4) stated that members who had established a pattern for shirking were subject to separation for unfitness. d. Paragraph 7b stated that individuals would be reassigned between Article 15 jurisdiction at least once, with a minimum of 2 months duty in each unit. In case reassignment was precluded by the restriction on expending funds, commanders insured that appropriate alternate rehabilitation measures were employed. 6. On 25 July 2018, a memorandum from 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) AR20160015474 2 1