ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    11 April 2019

	DOCKET NUMBER:  AR20160015839


APPLICANT REQUESTS:  The applicant requests, in effect, that his undesirable discharge which was upgraded to general under the Special Discharge Review Program (SDRP) be upgraded to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-authored statement

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 should have received a different discharge because he was against the war.  He could not kill anyone and still cannot today. He will be 69 years old in January, and does not have much time here on earth.  He wants his life to be better and requests the Board upgrade his discharge.  

     b.  He is not sure, but he thinks his discharge was upgraded to general, under honorable conditions.  He hopes it can be upgraded to honorable.  He further states:

* at the time he was in the Army the War was going on, and his life was not going very well
* he went absent without leave (AWOL) and wishes he had not done that
* he wishes he could have served his Country at a different time
* a lot of men went to Canada and maybe he should have done the same 
* he has lost his wife, mother, and sister
* he no longer has a life and prays the Board upgrades his discharge
* he understands if the Board does not upgrade his discharge
3.  On 16 January 1968, he was inducted in the Army of the United States.     

4.  On 29 October 1968, he was convicted by court-martial for being AWOL on 3 occasions and breaking arrest.  

5.  On 13 November 1968, the sentence was approved and ordered duly executed.

6.  On 22 May 1969, the applicant was medically cleared for administrative separation.  A Report of Psychiatric Evaluation shows:

* he was diagnosed with no significant psychiatric illness
* he was cleared for all administrative and judicial disposition as deemed fit his Command (unit)
* he was decidedly unmotivated for military service and stated “I didn’t ask to come in the Army, and I don’t want any part of it”

7.  On 29 May 1969, his chain of command recommended he be discharged for unfitness under the provisions of Army Regulation (AR) 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) based on habits of character manifested by repeated commission of petty offenses and habitual shirking.  The applicant was counseled by a legal officer on the same date.   

8.  On 9 June 1969, the separation authority approved the applicant’s discharge.  He also directed the applicant be reduced to the lowest enlisted grade and furnished an Undesirable Discharge Certificate. 

9.  Subsequently, he was discharged accordingly.  He completed 8 months and 16 days of net active service.  He was awarded or authorized no personal awards.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows in:

* item 11c (Reason and Authority) – AR 635-212, SPN 386
* item 13a (Character of Service) – Under Conditions Other Than Honorable
* item 30 (Remarks) – 247 days of lost time [AWOL and confinement] 

10.  On 5 July 1977, the applicant’s discharge was reviewed and upgraded under the provisions of the Department of Defense (DOD) SDRP.    

11.  On 19 May 1978, the Army Discharge Review Board made a preliminary determination he did not qualify for upgrading under the new uniform standards for discharge review.  The action did not change the character of discharge awarded to him by the SDRP.       
  
12.  On 31 July 1978, item 27 (Remarks) of his DD Form 214, was corrected to read discharge reviewed under the provisions (UP) of Public Law 95-126 and a determination made that characterization of service was warranted UP of DOD SDRP effective 4 April 1977.  
         
13.  On 4 April 1977 the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had met the criteria.  

14.  Army Regulation 635-200 (Active Duty Enlisted Separations) states an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.

15.  In reaching its determination, the Board should 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:

After reviewing the application and all supporting documents, the Board found that relief was not warranted.  Based upon the short term of military service prior to the multiple occasions of misconduct, the Board concluded that the characterization of service received at the time of discharge was appropriate.  For that reason, the Board recommended denying the applicant’s request for relief.  

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.


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 (Personnel Separations - Discharge - Unfitness and Unsuitability), in effect at the time of the applicant's separation from active duty, provided procedure and guidance in the elimination from the service of enlisted personnel who were found to be unfit or unsuitable for further military service.  It contains guidance that states an individual is subject to separation for unfitness when a Soldier commits frequent incidents of a discreditable nature with civil or military authorities.  This Army regulation also provided, in pertinent part, that an individual separated by reason of unfitness will be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate may be awarded if the individual being discharged has been awarded a personal decoration or if warranted by the particular circumstances in a given case.
3.  On 4 April 1977 the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

4.  In October 1978, Public Law 95-126 was enacted.  This legislation denied Veterans Administration (VA) benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector.  The DOD was required to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless he had been entitled to such benefits before his SDRP review.

5.  Army Regulation 635-200 (Active Duty Enlisted Separations), currently in effect, states an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate.

6.  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 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.  

ABCMR Record of Proceedings (cont)	 AR20160015839
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