ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  21 May 2019

	DOCKET NUMBER:  AR20170002740


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Army Review Boards Agency (ARBA) 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 that he served 2 years and 11 months of active duty, receiving the National Defense Service Medal (NDSM).  Two months before his service was to be completed they got a new member on his tank crew who was not following procedures and was putting the crew in danger.  The commanding officer had spoken to the new member several times.  One day the applicant got into an altercation with someone from his unit.  Then he found out he was related to a full bird colonel.  They railroaded him into signing papers to get rid of him.  He doesn’t believe it was his fault.

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

	a.  He enlisted in the Regular Army 11 August 1972.

	b.  He received nonjudicial punishment for several infractions on/for:

* 17 April 1973, wrongfully appeared for duty at division guard mount in an unclean and unserviceable uniform on 16 April 1973 and on 18 April 1973 he disobeyed a lawful order to mop the troop’s hallway
* 15 August 1973, for being absent without leave (AWOL) from his place of duty from 20 July 1973 to 24 July 1973
* 10 October 1973, for being AWOL from his place of duty, was disrespectful in language and deportment on 10 October 1973 toward a commissioned officer; his punishment included a reduction to PVT/ E-1)
* 4 March 1974, wrongfully possessing marijuana
* 11 October 1974, 22 March 1975, was disrespectful in language to his superior noncommissioned officers in the execution of their duties

	c.  The applicant’s unit commander recommended a discharge on 27 June 1975, under the provisions of paragraph 13-5, AR 635-200 (Personnel Separations – Enlisted Personnel) for unfitness (misconduct, frequent incidents of a discreditable nature0.

	d.  The applicant consulted with legal counsel on 22 July 1975, and was advised of the basis for his contemplated separation and its effects, the rights available to him and the effect of a waiver or his rights.  He acknowledged receipt of the proposed separation:

* he did not submit a statement on his behalf
* he understood that he may expect to encounter substantial prejudice in civilian life if a general, discharge under honorable conditions was issued to him
* he understood that, as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws

	e.  On 30 June 1975, the intermediate commander subsequently reviewed the proposed discharge action and recommended approval of the separation action and waived further rehabilitative efforts.

	f.  On 24 July 1975, the separation authority approved the applicant’s discharge under the provisions of paragraph 13, AR 635-200 for unfitness and directed that he be furnished an Undesirable Discharge Certificate.

	g.  The applicant was discharged from active duty on 28 July 1975.  His DD Form 214 (Report of separation from Active Duty) shows he was discharged in accordance with chapter 13-5 of AR 635-200 due to misconduct with an under other than honorable conditions characterization of service.  His DD Form 214 shows he completed 2 years, 3 months, and 3 days of active service with 79 days lost.  It also shows he was awarded or authorized the National Defense Service Medal.

4.  The applicant received a response on 31 March 1980, from the Office of the Adjutant General (AG) in reference to his request for corrections of his discharge.  He was advised that his discharge correction request to the Army Discharge Review Board was denied.

5.  By regulation (AR 635-200), paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

6.  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 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.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

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.


ADMINISTRATIVE NOTE(S):

Not Applicable

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.  AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.

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

	b.  Paragraph 1-9e (General discharge) states that a general discharge is a separation from the Army under honorable conditions.  It is issued to a member whose military record is not sufficiently meritorious to warrant an honorable discharge.  When a member’s service is characterized as general, except when discharged by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record.

	c.  Chapter 13 of the regulation in effect at the time provided for separation for unfitness or unsuitability.  An individual is subject to separation under the provisions of Paragraph 13-5(a) when one or more of the following conditions exist:

* unfitness, frequent incidents of a discreditable nature with civil or military authorities 
* sexual perversion, including but not limited to lewd and lascivious acts, indecent exposure, and indecent acts with or assault upon a child
* other indecent acts or offenses
* drug abuse
* established pattern of shirking
* established pattern showing dishonorable failure to pay just debts
* established pattern showing dishonorable failure to contribute adequate support to dependents
* homosexual acts

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.  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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170002740


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