ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 April 2019 DOCKET NUMBER: AR20170000369 APPLICANT REQUESTS: The applicant requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his characterization of service is honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 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, in effect, his unit was in turmoil. One night five sergeants in his unit, while drinking, called him into their room and wanted to counsel him about why they believed he was or was not a good Soldier. They berated him and threatened to beat him until he met their expectations. He attempted to leave the room, but he was blocked and not allowed to leave. This is when the fight began. He defended himself and the sergeants' let him leave the room, after they instructed him not to mention or report this incident. The next morning, after physical training he was placed in the stockade. He stayed in the stockade for a short period of time and he was assigned to a different unit until the investigation was completed. After the investigation, he was told he would be discharged under honorable conditions. He did not give the discharge anymore thought until he applied for veteran’s benefits. This when he noticed the discharge was not what was stated to him. He was a good Soldier, not perfect, but a good Soldier. He defended himself, because he was attacked. He does not believe he should be penalized for the immaturity and drunkenness of sergeants, who should know better and be professional. 1. 3. On 14 March 1967, the applicant was inducted into the Army of the United States with a moral waiver for a civil record, due to disorderly conduct-disturbance on 31 May 1963. 4. On 21 March 1967, while at Fort Benning, GA, attending basic training, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being disrespectful in language and deportment toward a noncommissioned officer by throwing his helmet liner, field jacket, and pistol belt on the ground, and using profanity. His punishment consisted of restriction, extra duty, and a forfeiture of pay (suspended for 40 days). On 30 March 1967, the suspended punishment was vacated. The reason for the vacation is unknown. 5. He completed advanced individual training at Fort Belvoir, VA and he was awarded military occupational specialty (MOS) 52B (Power Plant Operator Mechanic) on 3 July 1967. He was assigned to Fort Leonard Wood, MO on 5 March 1967. 6. He was convicted by a special court-martial on: a. On 14 August 1967, of being absent without leave (AWOL) from on or about 30 June to 29 July 1967. The court sentenced him to confinement at hard labor for 2 months. The convening authority approved his sentence on 17 August 1967. b. On 30 November 1967, of behaving with disrespect, by using disrespectful language toward a commissioned officer on 25 October 1967. The court sentenced him to confinement at hard labor for 3 months and a forfeiture of pay. The convening authority approved his sentence on 5 December 1967. 7. On 12 January 1968, a Report of Medical Examination, shows the applicant was found medically quailed for separation. 8. A Report of Psychiatric Evaluation, dated 30 January 1968, shows the applicant was given a psychiatric evaluation on 29 January 1968, with the following results: a. Diagnosis: Antisocial Personality Disorder – moderate. b. Comment: This condition does not require hospitalization, is not disabling, and presents no disqualifying mental or physical defect sufficient to warrant discharge under the provisions of AR 635-40. This individual was and is mentally responsible, both to distinguish right from wrong and adhere to the right, and has the mental capacity to understand and participate in board proceedings. a. c. Findings: (1) This condition represents a character and behavior disorder described under the provisions of AR 40-401. This disorder is not medically disqualifying but should be considered in further training or administrative disposition by the unit commander. (2) Other: This 22 year old enlisted male was interviewed on 29 January 1968 for AR 635-212 evaluation. He states that he is the type of person who does not like to be confined or unable to go when he pleases. He states that he has trouble adjusting to the discipline of the Army. He is not motivated for continued military performance. He is cleared for any administrative decision deemed appropriate by his chain of command. 9. On 14 February 1968, the applicant was notified that board action for unfitness was being contemplated against him, under the provisions of AR 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) and advised of his available rights. 10. The applicant acknowledged notification, consulted with legal counsel, and was advised of the basis for the contemplated separation action for unfitness under the provisions of AR 635-212. He waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, declined to submit statements in his own behalf, and waived further representation by counsel. 11. On 14 February 1968, the applicant's immediate commander recommended that the applicant be separated from the service for unfitness under the provisions of AR 635-212, for unfitness, due to the applicant’s habits and traits of character manifested by repeated commission of petty offenses and habitual shirking. 12. The applicant's intermediate and senior commanders recommended a waiver of the rehabilitative efforts and approval of the elimination action, with an undesirable discharge. 13. On 12 March 1968, the separation authority approved the applicant’s discharge under the provisions of AR 635-212 by reason of unfitness and directed the issuance of an Undesirable Discharge Certificate, with service characterized as under conditions other than honorable. 14. On 14 March 1968 the applicant was discharged accordingly. His DD Form 214 shows a character of service of under conditions other than honorable. He completed 5 months and 16 days of active service and had three periods of lost time (200 days). He was awarded the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge (Rifle). 1. 15. AR 635-212, provided that Soldiers would be discharged by reason of unfitness. An undesirable discharge was normally issued unless the particular circumstances warranted otherwise. 16. The applicant contends he was discharged as a result of fighting. However, the available evidence does not show he was discharged as a result of fighting. He was discharged after he received two court-martial convictions and an NJP, which were related to him being AWOL, behaving in a disrespectful manner toward a commissioned officer by using inappropriate language toward him. 17. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined hat relief was not warranted. Based upon the extremely short term of service prior multiple occasions of UCMJ violations, the Board concluded 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. 4/29/2019 X to CHAIRPERSON Signed by: 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. 1. AR 635-212, as then in effect, set forth the policy for administrative separation for Soldiers due to unfitness. It provided that Soldiers would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted otherwise. 2. AR 635-200 (Active Duty Enlisted Administrative Separations) provides for the separation of enlisted personnel, it provides: a. 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. 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. 3. 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 based on equity, injustice, or clemency grounds, a. 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.