ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  9 May 2019

	DOCKET NUMBER:  AR20170001136


APPLICANT REQUESTS:  an upgrade of his other than honorable conditions discharge to honorable.

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).
* Applicant’s Written Statement
* Army Achievement Medal Certificate
* Army National Guard Soldier of the Year 
* Army National Guard Honorable Discharge Certificate (1980)
* Army National Guard Honorable Discharge Certificate (1989)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* NGB Form 22 (National Guard Bureau Report of Separation and Record of Service)

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 that he volunteered for the draft and wanted to be a good Soldier.  He went to 11B (Infantryman) advanced individual training and due to a leg injury his military occupational specialty (MOS) was changed to 94B (Cook).  He was transferred to Fort Ord, CA, for clerk school but did not do well.  He incurred 40 days of bad time and he was given a choice, and he chose to take the undesirable discharge.  He has since regretted this decision.  However, he believes that he served his country honorably as a First Cook in the Idaho Army National Guard (IDARNG) from 1980-1989.  He obtained the rank of E-5, received an Army Achievement Medal, and had two honorable discharges.

3.  A review of the applicant’s service records shows the following:

	a.  He enlisted in the Regular Army on 21 August 1970.

	b.  On 19 Feb 1971, he accepted nonjudicial punishment (NJP) under Article 15 for being absent without leave (AWOL) from 11 to 12 February 1971.  He received suspended punishment of 15 days in correctional custody and reduction to the grade of E-1.

	c.  On 7 July 1971, he plead guilty in Monterey Civil Court for being drunk in public and was fined $35.00.

	d.  On 12 July 1971, he accepted NJP for being AWOL from 15 to 17 June 1971, 28 to 29 June 1971, and 6 to 9 July 1971.  He received a $50.00 fine for two months, reduction to the grade of E-1, 30 days extra duty, and 30 days restriction.

	e.  On 18 August 1971, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-212 (Discharge Unfitness and Unsuitability), paragraph 6a(1) for unfitness for being AWOL on numerous occasions.

	f.  On 19 August 1971, the applicant acknowledged receipt of the commander’s intent to separate him.

	g. Subsequent to the applicant’s acknowledgment, on 19 August 1971, the immediate commander recommended that the applicant appear before a board of officers for the purpose of determining whether he should be discharged before expiration of term of service.  Also, the commander recommended an undesirable discharge for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.

	h.  On 23 August 1971, the applicant requested consideration of his case and a personal appearance by a board of officers.  Also, he requested representation by counsel, but waived his right to submit statements on his behalf.  He was advised of:

* he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable condition is issued to him
* he would be ineligible for many or all benefits as a veteran under both Federal and State laws

	i.  The board of officers results are not available for review with this case. 

	j.  On 14 September 1971, the separation authority approved an Undesirable Discharge Certificate under the provisions of paragraph 6a(1) of AR 635-212, by reason of unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities.

	k.  He was discharged from active duty on 17 September 1971.  His DD Form 214 (Armed Forces of the Unites States Report of Transfer or Discharge) shows he was discharged under the provisions of paragraph 6a(1), due to “unfitness” with an under conditions other than honorable characterization of service.  He completed 11 months and 24 days of active service.  It also shows he was awarded or authorized:

* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar

	l.  The applicant applied to the Army Discharge Review Board for an upgrade of his discharge which was denied by the board on 25 September 1973.

4.  By regulation, action will be taken to separate a soldier for unfitness when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory soldier further effort is unlikely to succeed.  An undesirable discharge certificate is normally appropriate for a soldier discharged under AR 635-212, 6a(1).

5.  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 determination 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 that relief was not warranted.  Based upon the short term of service prior to multiple UCMJ violations, the Board concluded that the characterization of service 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.
	 
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 (AR) 635-212, (Discharge Unfitness and Unsuitability), in effect at the time, provides for guidance for eliminating enlisted personnel who are found unfit or unsuitable for further military service.

	a.  Paragraph 1-9(d) (Honorable Discharge) states an honorable discharge is a separation with honor.  Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude.

	b.  Paragraph 1-9(e) (General Discharge) states 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.

	c.  Section I of this regulation provides procedures for eliminating enlisted personnel who are found to be unfit or unsuitable for military service.

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 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.

ABCMR Record of Proceedings (cont)	 AR20170001136


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