ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 June 2019 DOCKET NUMBER: AR20160017355 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge and appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * VA Form 10-5345 * Vet Center Letter 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, his characterization of discharge is unjust. The Army did not abide by his enlistment contract and employed and deployed him in his military occupational specialty (MOS). By not doing so, they not only robbed him of a promotion, but ultimately demoted him. This was after he served a full year in Vietnam and received the Purple Heart. 3. The applicant provides a letter from the Vet Center located in Milwaukee, Wisconsin dated, on 3 May 2019, stating what appears to be discrepancies in the requested advisory. Things such as incorrect military dates and other items (please see the attached). 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 9 February 1965 and reenlisted on 9 February 1966. b. He accepted nonjudicial punishment on/for: a. * 28 May 1966, carelessly discharged a riot type 12 gauge shotgun in the company area; his punishment included forfeiture of $29.00 for one month * 2 September 1967, for failure to be at his appointed place of duty; his punishment reduction to E-3 and forfeiture of $25.00 for one month * 20 December 1967, for Absent Without Leave (AWOL); his punishment was reduction to E-2 * 21 February 1968, for failure to obey a lawful general regulation and failure to obey; his punishment was reduction to E-1,14 days restriction and 14 days extra duty c. On 10 April 1968, he was convicted by summary court-martial for one specification of Absent Without Leave (AWOL) from 30 April 1966 to 24 August 1966, one specification for failure to be at his appointed place of duty, one specification for failure to obey a lawful general regulation. On 11 April 1968, the court sentenced him to confinement at hard labor for 30 days (suspended), and forfeiture of $30.00 per month for one month. d. His service record is void of the complete facts and circumstances surrounding his discharge. However, his record contains a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged from active duty on 22 April 1968, under the provision of Army Regulation 635-312 (Personnel Separations – Discharge – Unfitness and Unsuitability) and issued an Under Other Than Honorable Discharge Certificate. He served 2 years, 2 months and 5 days of active service during this period. He has 9 days of lost time. He was awarded or authorized: * Purple Heart Medal * Vietnam Service Medal with 2 Bronze Service Stars * Republic of Vietnam Campaign Medal with Device * Expert Marksmanship Qualification Rifle 5. On 15 April 2019, the Army Review Boards Agency (ARBA) psychologist provided an advisory opinion which states: a. The Army Review Boards Agency Clinical Psychologist was asked to determine if there is a nexus between Mr. X____ reported behavioral health difficulties and the misconduct resulting in his discharge. This opinion is based on the information provided by the Board and the Joint Legacy Viewer (JLV), as the DOD electronic medical record (AHLTA) did not exist during his time in service. Based on a thorough review of available records, Mr. X____ basis for separation is not mitigated. While Mr. X____ engaged in multiple instances of misconduct, some of which may have been mitigated by his post-service diagnosis of PTSD, his discharge was based on a pattern of failure to pay debt. This offense is not part of the natural progression or normal sequel of a. PTSD. In summary, Mr. X____ basis for separation is not mitigated by his post-service diagnosis of PTSD. 6. In regards to the applicant’s request for an appearance before the Board, AR 15-185 (Army Board for Correction of Military Records (ABCMR)) states ABCMR members will review all applications that are properly before them to determine the existence of an error. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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. 7. By regulation, action will be taken to separate an individual for unsuitability when it is clearly established that it is unlikely that he will develop sufficiently to participate in further military training and/or become a satisfactory Soldier, and he meets retention medical standards when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort is unlikely to succeed. An individual separated by reason of unfitness will be furnished an Undesirable Discharge Certificate. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. Based upon the pattern of misconduct, the medical advisory’s finding that the basis for separation is not mitigated by his post-service diagnosis of PTSD, as well as the lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to his discharge, 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. 0 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. 1. Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), in effect at the time, set forth the policy for administrative separations for unfitness. a. Paragraph 3b (Policy) states action will be taken to separate an individual for unsuitability when it is clearly established that: * It is unlikely that he will develop sufficiently to participate in further military training and/or become a satisfactory Soldier * He meets retention medical standards (AR 40-501) (PARA 9a). b. Paragraph 4 (Types of Separation) states 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. AR 635-200 (Active Duty Enlisted Separations), currently in effect, sets forth the basic policy for separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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 (General Discharge) states 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. 4. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) states ABCMR members will review all applications that are properly before them to determine the existence of an error. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do 1. not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 5. 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 based on 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.