ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 March 2019 DOCKET NUMBER: AR20160015825 APPLICANT REQUESTS: In effect, his undesirable discharge be upgraded to honorable discharge. 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 2 September 2016 * DD Form 214 (Report of Separation from Active Duty), for the period ending 5 February 1975 * DA Form 13046 (9-85) (Response to Request for Separation Documents/ Information), dated 25 September 1987 * Character Reference Letters from the Director, Substance Abuse Treatment, "RCPCS," dated 9 June 2016; a Pastor at the New Morning Star Baptist Church, dated 18 July 2016; and a U.S. Air Force Colonel (Retired), dated 27 July 2016 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); 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 he was training in the field; he was using big guns with big recoil when he requested that the lieutenant who was standing too close to the firing area step back so that he would not be injured by the recoil. The officer did not listen to him and he flew backward because of the recoil action. He and another Soldier began laughing at the officer and that's when his disciplinary problems began. Several incidents occurred in which other people were lightly disciplined; however, he would always receive the most severe punishments. 3. The applicant enlisted in the Regular Army on 27 July 1973. 4. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the following offenses: a. On 24 June 1974, for failing to obey a lawful order on or about 19 June 1974. b. On 7 August 1974, for being absent from his unit from on or about 5 August until on or about 7 August 1974. c. On 1 October 1974, being absent without leave (AWOL) from on or about 19 August through on or about 26 August 1974. 5. The applicant was notified on 18 October 1974 that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). His commander cited, as the basis for his recommendation, the applicant's habits and traits manifested by repeated misbehavior, failure to obey orders, empathy, inability to conform to established military patterns, and his failure to respond to repeated attempts to aide in his rehabilitation. 6. The applicant accepted NJP on 24 October 1974, under the provisions of Article 15 of the UCMJ, for failing to obey a lawful order on or about 16 October 1974. 7. The applicant acknowledged receipt of the notification on 1 November 1974. He consulted with counsel and requested consideration of his case by a board of officers. He declined to make a statement in his own behalf. 8. A board of officers convened on 3 January 1975 to determine whether the applicant should remain on active duty. The board found that he should be separated from the service under the provisions of Army Regulation 635-200, chapter 13, and recommended the issuance of an Undesirable Discharge Certificate. 9. The convening authority's approval for discharge is not filed in the applicant's official record. However, his record contains a DD Form 214 that shows he was discharged on 5 February 1975, under the provisions of Army Regulation 635-200, chapter 13, by reason of unfitness. He completed 1 year, 5 months, and 28 days of total active service and he had 12 days of lost time. He received an Undesirable Discharge Certificate and his service was characterized as under other than honorable conditions. 10. The Army Discharge Review Board denied the applicant's request for an upgrade of his discharge on 25 October 1977. 11. The three reference letters provided by the applicant all attest to his good character and post-service conduct. 12. Army Regulation 635-200 provides the authority for separation of enlisted personnel upon expiration of term of service; the authority and general provisions governing the separation of enlisted personnel prior to expiration of term of service; and the criteria governing the issuance of Honorable, General, and Undesirable Discharge Certificates. 13. The Board should consider the applicant's provided evidence and personal statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions and letters of support were considered. The Board agreed the discharge characterization was warranted as a result of the misconduct. 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. ___________X________________ Chairperson 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, U.S. Code, 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. Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel. a. Paragraph 3-7a provides that an HD 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. Paragraph 3-7b 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. c. Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability. Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts. When separation for unfitness was warranted a UD was normally considered appropriate. 3. 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. ABCMR Record of Proceedings (cont) AR20160015825 4 1