ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 May 2019 DOCKET NUMBER: AR20160015637 APPLICANT REQUESTS: The applicant requests: * reconsideration to upgrade his under other than honorable conditions discharge to general, under honorable conditions; and * the opportunity to appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) in lieu of the DD Form 149 (Application for Correction of Military Records) * VA Form 21-4138 (Statement in Support of Claim) * Character reference letter FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110021492 on 1 May 2012. 2. The applicant states, in effect: a. While assigned on tour in Germany, the applicant’s commanding officer (CO) chose him to be his personal driver. During this time racial tensions began to escalate. One day several of the Soldiers in his barracks jumped on and beat two white Soldiers. He witnessed the incident. He reported what he had seen to his commanding officer and testified at the Soldiers court-martial hearing. b. His CO was under the impression the he would be assigned stateside but he was assigned to Vietnam instead. After being there for a while they assigned the same CO that he had in Germany to his outfit. The CO called him to his office one day and talked to him about how the information he and another Soldier provided helped him in Germany. The applicant was asked by the CO to sign some papers so that he could get him home within a week. He was told that his discharge would be at least a general, under honorable conditions. He signed the papers, and was sent home. a. 3. On 3 September 1969, the applicant enlisted in the Regular Army. 4. A review of the applicant’s record revealed an extensive history of indiscipline. He accepted non-judicial punishment from October 1969 to August 1971 on multiple occasions for: * being absent without leave (AWOL) * failing to be at his appointed place of duty * disobeying a lawful order * failing to sign out on the personnel register 5. On 14 July 1970, the applicant was convicted by court-martial. He pled guilty and was found guilty of being AWOL on 2 occasions. 6. In May and June of 1971, court-martial charges were preferred against the applicant for: * failing to go at the time prescribed to his appointed place of duty on 3 occasions * disobeying a lawful order * leaving his post [in Vietnam] without being properly relieved 7. On 3 September 1971, a Report of Psychiatric Evaluation shows the applicant: * had no disqualifying mental defects sufficient to warrant disposition through medical channels * was mentally responsible and able to distinguish right from wrong and adhere to the right * had the mental capacity to understand and participate in board proceedings * was diagnosed with passive aggressive personality * was recommended for separation by a military medical officer 8. On 8 September 1971, the applicant’s commander recommended he be administratively eliminated from the service based on unfitness in accordance with the provisions of paragraphs 6a(1) and 6a(4) of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) with an undesirable discharge. The commander advised him of his available rights, to include his right to consult with counsel. a. The applicant acknowledged receipt of the separation notification memorandum. He acknowledged he understood the basis for elimination. He elected not to make any statements in his own behalf and waived representation by counsel. a. b. His commander recommended he be eliminated from further military service. The applicant's chain of command recommended approval of the administrative separation action and the separation authority approved his separation with an Undesirable Discharge Certificate. 9. On 4 October 1971, the applicant was discharged accordingly. He completed 1 year, 11 months and 14 days of net active service. He had 18 days of lost time. The applicant was awarded or authorized the: * National Defense Service Medal * Vietnam Service Medal with “1960” device * Republic of Vietnam Campaign Medal with 2 bronze service stars * Presidential Unit Citation 10. The record contains no indication of procedural or other errors that would tend to jeopardize the applicant’s rights. 11. The applicant provided a character reference letter from his senior pastor stating it is with great pleasure that he submits this letter concerning the character of the applicant. He has known the applicant for several years and he has always displayed a high degree of integrity, responsibility, and ambition. He exhibits strong Christian standards and is involved in several ministries of the Church. The applicant is a man of integrity and strong moral character. 12. The Army Discharge Review Board and Army Board for Correction of Military Records denied the applicant’s previous requests for an upgrade of his discharge. 13. Army Regulation 635-212 provided that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities and an established pattern of shirking. When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 14. Army Regulation 635-200 (sets forth the basic authority for the separation of enlisted personnel. It provides that 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. 15. Army Regulation 15-185 (ABCMR) provides that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 16. In reaching its determination, the Board should consider the applicant's petition, his statement, service record, and character reference letter in light of the published Department of Defense guidance on equity, injustice, or clemency. 1. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the short term of service completed prior to multiple UCMJ offenses, the Board concluded that the characterization of service received at the time of discharge 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: 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. 5/16/2019 X CHAIRPERSON Signed by: 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) provides that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. Formal hearings are granted only when the Board determines that a case is so complex, or the records so incomplete that only sworn testimony can provide the necessary information. 2. Army Regulation 635-212 set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. Paragraph 6a provided that an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. It provides that: 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 Anny personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Anny 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. 4. 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 a. 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.