ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    11 April 2019

	DOCKET NUMBER:  AR20160017099


APPLICANT REQUESTS:  The applicant requests his under honorable conditions be upgraded to an honorable discharge.
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Applicant Statement
* News Paper Article

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 he enlisted with eight of his buddies under the Army’s buddy enlistment plan with a guaranteed assignment to the 101st Airborne Division at Fort Campbell, KY.  They were guaranteed to stay together for 1-2 years out of the 4 year enlistment.  After basic training, when they all got their orders he was the only one who was assigned to Fort Ord, CA.  His recruiter filled out his paperwork incorrectly.  Someone with the Army investigated the original enlistment and one day an investigator with the Army came to talk to him.  He was told by the investigator that it would take 2 – 3 months to catch him up with the others or he could give him time served and he could go home with an honorable discharge.  He believed all these years that his DD Form 214 read the same and didn’t know he was punished for something the recruiter did.  

3.  On 26 June 1972, at the age of 19 the applicant enlisted in the Regular Army.  

4.  On 14 September 1972, he received non-judicial punishment (NJP) for being absent without leave (AWOL) from on or about 8 September 1972 to on or about 11 September 1972.  

5.  On 30 September 1972, he received NJP again for being AWOL on or about 2 October 1972 to on or about 20 October 1972.
6.  On 27 November 1972, after being referred to the Mental Hygiene Consultation Service, a psychological evaluation was completed on the applicant by a psychology specialist and reviewed and approved by a psychology intern.  The evaluation did not show an indication of neurosis or psychosis.  It did show a combination of personal immaturity and unwillingness to adapt to the military which is incompatible with effective service in the Army.  It was very doubtful that the required sense of motivation was not present in him and therapeutic measures at that time would have been of very little value.  Because of his record of behavior it was recommended that he be administratively separated from the service for the good of both the he and the service.

7.  On 30 November 1972, the applicant was advised, by his commander, he was being considered for separation from the United States Army under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), for unsuitability; he acknowledged receipt.   

8.  On 8 December 1972, his commander recommended he be separated under the provisions of paragraph 6b, Section II, AR 635-212 because of character and behavior disorders.  The basis for elimination is a history of antisocial behavior prior to and after entering military service; immature and unstable; unmotivated and unwilling to work at the problem; unwilling to cooperate with authority; not amendable to any form of punishment, restraining, or rehabilitation with the military setting.

9.  On 18 December 1972, the applicant was advised by legal counsel and acknowledged that he understood his available rights.

10.  On 19 January 1973, the appropriate authority approved the recommendation for discharge of the applicant and directed he be issued a general discharge certificate.

11.  On 26 January 1973, the applicant was discharged accordingly.  He completed 6 months and 5 days of total active service.  Approximately 32 days AWOL.

12.  The applicant states he enlisted in the buddy program with eight friends and were supposed to stay together for 1-2 years.  After basic training he was the only one who wasn’t assigned to the 101st Airborne Division.  After an investigation, he was told that it would take 2-3 months before he would catch up with his buddies or go home with an honorable discharge.  He didn’t know he was being punished for what his recruiter did.  His records show during basic combat training he went AWOL on two separate occasions.  Within five months of active service he was referred to the Mental Hygiene Consultation Service which provides his demonstrated behavior and lack of motivation, will unlikely will change as long as he’s in the military.

13.  Army Regulation 635-200 provides states members are separated under chapter 13, in effect at the time, provided for separation due to unsatisfactory performance when, in the commander's judgment when the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order, and morale; the service member would be a disruptive influence in the future the basis for separation would continue or recur; the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely.  The issuance of a discharge under other than honorable conditions is normally considered appropriate; however, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.
  
14.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published 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 completed prior to multiple occasions of AWOL occurring, 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, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, 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. However, 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, Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

     a.  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 had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

     b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was 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.  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)	 AR20160017099
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