ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 6 June 2019 DOCKET NUMBER: AR20160016513 APPLICANT REQUESTS: His undesirable discharge be upgraded to a general 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) * a personal 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 never got along with the sergeant (SGT) who ran his company in Korea. Granted, the applicant's expectations were higher than he should have had considering the amount of time he was in the military, but he never expected to have to endure verbal assaults to his character. b. When a new mail clerk was needed for the unit, he submitted his name for consideration; having excellent number memory, he felt it would be something he could do well and make himself useful while he was in country. He was made aware that he was not even considered. During formation one day the SGT, in front of the entire company, stated "I wouldn't trust you with my dog!" On another occasion, he pulled him behind the barracks and told him if it were twenty years earlier he would kill him and no one would ever know. c. When the applicant requested a "Rehabilitative Transfer" the SGT's response was "I'm not gonna pass my problems onto someone else." d. Just days before he was to leave the military, after already accepting an "Honorable Discharge under General Conditions," the SGT came to his barracks and said "… I'm losing sleep nights thinking you're gonna get out with your benefits" to which the applicant replied, "Do what you think you can do. Go for it." e. He regrets having ever said that because when he arrived at the orderly room to get his orders to leave country, he was told by the clerk, "Oh Fox, go back to your unit, your orders have been changed. And oh, by the way, your discharge has been lowered." f. Since he left the military, he has worked, slowly gotten himself educated, has no addictions to any type of drugs or alcohol, and has never spent more than one 12-hour period and one 24-hour period in jail. g. It has now been more than forty years and he is still barred from any kind of military benefits that should have been available to him but for the fact that his discharge was changed without his knowledge or consent. 3. The applicant enlisted in the Regular Army on 28 February 1975. He entered active duty, completed his initial entry training, and was assigned to the Republic of Korea. 4. The applicant received nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: * on 19 January 1976, for failing to go to his place of duty (physical fitness training), and for failing to obey a lawful order from a noncommissioned officer * on 5 February 1976, for failing to go to his place of duty (physical fitness training) * on 6 March 1976, for absenting himself from his place of duty (extra duty) on two occasions * on 22 March 1976, for failing to go to his place of duty (physical fitness training) 5. The applicant's unit commander initiated elimination actions against the applicant on 6 February 1976, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-37 (Expeditious Discharge Program). The applicant acknowledged receipt of the proposed separation memorandum. 6. The applicant was notified on 1 March 1976 that his unit commander intended to recommend his separation under the provisions of Army Regulation 635-200, chapter 13, by reason of unfitness. The applicant acknowledged receipt of the proposed separation memorandum. 7. The applicant's unit commander initiated elimination actions against the applicant on 6 February 1976, under Army Regulation 635-200, chapter 13. His unit, battalion, and brigade commanders recommended he appear before a board of officers. 8. The applicant was afforded psychiatric and mental status evaluations on 31 March 1976. Neither evaluation found any evidence of a mental disease or defect, or physical condition warranting processing through medical separation provisions. 9. The applicant appeared before a board of officers review on 6 May 1976, to determine if he should be separated. During the hearing, testimony was offered that indicating; a. Initially the applicant's unit commander recommended the applicant be separated under Army Regulation 635-200, chapter 5, expeditious discharge program. This recommendation was withdrawn due to the applicant's continued misconduct. b. In addition to the offenses for which he received NJPs, the applicant had: (1) a history of being late for other formations, extra duty, and work details; (2) poor personal grooming practices; (3) a lack of response to basic guidance; (4) a history of lying to his commander; curfew violations; (5) poor and sloppy military bearing; and (6) was generally considered undependable. c. The board of officers recommended the applicant be separated for misconduct with a UD. 10. The general court martial convening authority approved the request for discharge on 9 June 1976, under the provisions of Army Regulation 635-200, chapter 13, by reason of misconduct. He directed the applicant receive a UOTHC discharge. 11. The applicant was discharged on 21 June 1976 with an undesirable discharge. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a(1), his service was characterized as under other than honorable conditions, and his separation program designator (SPD) code was "JBL" (Pattern of Discreditable Incidents). 12. The Army Discharge Review Board denied the applicant's request for an upgrade on 8 September 1982. 13. The Board should consider the applicant's 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 board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the applicant had limited creditable service, no wartime service and insufficient evidence of mitigating circumstances for the misconduct. The applicant provided no evidence of post-service honorable conduct that might have mitigated the discharge characterization. The Board agreed that the applicant’s discharge characterization is 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. 8/27/2019 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): 4 Not Applicable 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 635-200 (Personnel Separations — Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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 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 5, as then in effect, provide, in pertinent part, for the Expeditious Discharge Program (EDP). This program provided that an individual who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that he could not or would not meet acceptable standards could be separated. Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to consult with legal counsel. d. Paragraph 13-5a(1), as then in effect, provides that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge 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. //NOTHING FOLLOWS//