ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 June 2019 DOCKET NUMBER: AR20170001016 APPLICANT REQUESTS: an upgrade of his discharge under other than honorable conditions to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Report of Separation from Active Duty) * Certificate of Completion, Life Skills Training, dated 17 September 2010 * Certificate of Achievement, Financial Firsts Program, dated 1 October 2010 * Certification of Completion, Employment Essentials, dated 15 October 2010 * Letter from X X , dated 11 November 2016 * Letter from X X _, dated 17 November 2016 * Letter from X X , dated 21 November 2016 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR201000013468 on 16 November 2010 and Docket Number AR20150003209 on 25 August 2015. 2. The applicant states he has changed his whole life and became an outstanding citizen in his community where he worked for over 25 years until receiving a medical retirement. He is a member of Victory Christian Church, has made great contributions to society, and is ready to move forward. When he was in the service, he was very young and immature. He got involved with the wrong crowd, did some things he is not proud of, and had a drug problem. However, he has turned his life around and is doing positive things with his life. He would now like a second chance at life so he can put this chapter behind him. 3. He enlisted in the Regular Army on 31 July 1974 and served in Germany from 9 January 1975 to 7 April 1976. 1. 4. He accepted nonjudicial punishment on/for: * 11 December 1974, for wrongfully having possession of marijuana * 20 March 1975, for being absent from his work area * 17 June 1975, for willfully disobeying an order * 20 June 1975, for using disrespectful language toward a superior * 10 December 1975, for wrongfully stealing personal property * 12 February 1976, for failing to go to his appointed place of duty 5. On 3 June 1976, he was convicted by special court-martial for stealing a wallet, gasoline coupons with a value of approximately $100.00, and approximately $25.00 in U.S. currency. He was sentenced to confinement at hard labor for 180 days, forfeiture of $240.00 per month for 6 months, and reduction to the grade of E-1. 6. On 21 June 1976, his immediate commander informed him of his proposed recommendation for separation for frequent incidents of a discreditable nature under provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13. His commander listed approximately 35 negative incidents regarding his conduct, attitude, performance, and discreditable acts. The applicant acknowledged he understood: a. the pending discharge proceedings were for misconduct. b. his rights, to include to consult with council, to present his case before a board of officers, to submit statements in his own behalf, to be represented at a hearing by counsel for representation, and to waive his rights to present his case, submit statements, or be represented. 7. On 24 June 1976, his immediate commander initiated separation proceedings against him for misconduct under the provisions of Army Regulation 635-200, paragraph 13-5. The commander cited the applicant's frequent incidents of a discreditable nature and cited his court-martial convictionn and nonjudicial punishment. His commander stated: * his actions, behavior, and attitude precluded rehabilitation * he demonstrated little desire for returning to duty * he received considerable counseling by social workers and the leadership team 8. On 24 June 1976, the applicant acknowledged the proposed separation for misconduct, its effect, the rights available to him, and the effect of any action taken by him in waiving his rights. He requested consideration of his case by a board of officers with a personal appearance hearing. He did not submit statements in his own behalf and requested representation by counsel. He acknowledged: 1. * he may expect to encounter substantial prejudice if a general discharge under honorable conditions was issued to him * as the result of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both state and federal laws 9. On 16 July 1976, a board of officers convened at Fort Riley, KS, to determine whether he should remain in the service or be administratively separated. The board determined he had the ability to perform military duty in a satisfactory manner. However, his misconduct was evidenced by conviction by court-martial, nonjudicial punishment, and numerous discreditable incidents while in confinement at the U.S. Army Retraining Brigade. The board recommended his elimination for misconduct with issuance of an Undesirable Discharge Certificate. 10. On 26 July 1976, the convening/separation authority approved the board proceedings and ordered his discharge from the Army under the provisions of Army Regulation 635-200, chapter 13, by reason of misconduct and directed issuance of an Undesirable Discharge Certificate. 11. He was discharged on 28 July 1976. His DD Form 214 shows he completed a total of 1 year, 8 months, and 7 days of creditable active military service with 111 days of lost time. He was awarded or authorized the National Defense Service Medal. 12. On 8 February 1978, he petitioned the Army Discharge Review Board for an upgrade of his discharge. He was represented by a veteran's counselor. The counselor argued he should not have been enlisted due to his low Armed Forces Qualification Test score of 12 and that "he probably never understood what the military was about." 13. On 16 July 1979, the Army Discharge Review Board denied his appeal for a discharge upgrade. The board considered his acts of indiscipline (five nonjudicial punishments and one special court-martial conviction) and 111 days of lost time, and weighed those against his period of overall service of approximately 2 years, and determined relief could not be granted. 14. On 6 July 1981, the Army Discharge Review Board notified the applicant he would be scheduled for a personal appearance before a hearing examiner during the month of October 1981. He was advised to return an acknowledgement form to receive a formal letter showing the specific date, time, and location of the hearing. 15. On 5 October 1981, the Army Discharge Review Board notified the applicant that his case was closed because he failed to respond to their scheduling notification. 1. 16. On 15 April 2010, he applied to the ABCMR and requested an upgrade of his discharge under other than honorable conditions. 17. On 16 November 2010, the ABCMR denied his application. Based on his record of substandard performance and/or indiscipline, the Board determined his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. 18. On 4 February 2015, he applied to the ABCMR for reconsideration. 19. On 25 August 2015, the ABCMR denied his application for reconsideration. The Board carefully considered if there was any evidence of post-traumatic stress conditions that may have been a causative factor in the misconduct resulting in his discharge. The Board found: * no evidence of post-traumatic stress conditions or that he experienced a traumatic event related to his military service * no evidence his pattern of misconduct was a result of his age or that he was any less mature than other Soldiers of the same age * a history of misconduct that included negative counseling, drug abuse, theft, numerous instances of nonjudicial punishment, and one court-martial conviction * he was provided multiple opportunities for rehabilitation by his command and medical community but failed to respond constructively * discharge proceedings were conducted in accordance with law and regulation * his service did not meet the standards of acceptable conduct and performance of duty for Army personnel * his misconduct rendered his service unsatisfactory 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 that relief was not warranted. Based upon the short term of service completed prior to a pattern of misconduct, some involving criminal behaviors (stealing), the Board concluded that the characterization of service received at the time of the 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. 6/12/2019 X 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. Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. A general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. b. An undesirable discharge is an administrative separation under conditions other than honorable. It may be issued for unfitness or misconduct. c. Chapter 13 provided procedures and guidance to separate an individual for unfitness when it was clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort was unlikely to succeed. An individual separated by reason of unfitness would be furnished an Undesirable Discharge Certificate, except that an Honorable or General Discharge Certificate might be issued if the individual had been awarded a personal decoration or if warranted by the particular circumstances in his case. 2. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct.