ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS SAMR-RB 21 October 2019 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20170003355 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 25 June 2019, in which the Board members recommended denial of the applicant’s request for a discharge upgrade. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant additional relief. Therefore, in addition to the portion of the applicant’s request granted by the Board, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 8 January 2020. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence BY ORDER OF THE SECRETARY OF THE ARMY: X DOCKET NUMBER: AR20170003355 APPLICANT REQUESTS: an upgrade of his other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veteran Affairs (VA) Statement of the Case * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 under Army Regulation (AR) 635-212 (Personnel Separations-Discharge Unfitness and Unsuitability), Major K__ told him that by signing the waiver, he would be able to get a general discharge within a month after he was let out of the Army. He would not have signed the waiver if he knew it would be an undesirable discharge. 3. The applicant provides: * DD Form 149 (Application for Correction of Military Record) * Department of Veteran Affairs (VA) Statement of the Case 4. A review of the applicant’s service records show the following: a. He enlisted in the Regular Army on 28 May 1965. b. He received nonjudicial punishment on/for: * 24 May 1966, for disorderly conduct; his punishment consisted in part of reduction to E-2 * 21 June 1966, for being absent without leave (AWOL) from 17 June 1966 to 20 June 1966 * 28 June 1966, for being AWOL from 24 June 1966 to 27 June 1966 c. On 14 March 1967, court-martial charges were preferred on the applicant for two specifications of being AWOL from 12 July 1966 to 20 July 1966 and from 29 July 1966 to 27 November 1966 and one specification of escaping from lawful confinement on 29 July 1966. The charges were dismissed on motion of defense due to lack of a speedy trial. d. On 4 April 1967, his immediate commander notified the applicant that he was being recommended for discharge under AR 635-212 for unfitness, because of habits and traits of character manifested by repeated commission of petty offenses and habitual drinking. The applicant acknowledged receipt of the recommendation. e. On 17 April 1967, he was convicted by a summary court-martial of one specification of breaking restriction. He was sentenced to restriction to the company area for 30 days. f. On 5 June 1967, he acknowledged of the notification and after receiving legal counsel, completed an election of rights statement. He waived consideration, to include a personal appearance, of his case by board of officers. He declined to submit a personal statement and waived representation. g. On 6 June 1967, his immediate commander recommended discharge under AR 635-212 for habits and traits of character manifested by repeated commission of petty offenses and habitual drinking. h. On 8 June 1967, he was convicted by a special court-martial of one specification of being AWOL from 22 April 1967 to 1 May 1967 and one specification of breaking restriction. His sentence included confinement at hard labor for 6 months and forfeiture of $64 pay per month for 6 months. i. The Separation authority's decision and discharge orders are not available for the Board to review. However, his DD Form 214 shows he was discharged from active duty on 11 July 1967 with an under other than honorable conditions discharge. He was assigned Separation Program Number 386 (unfitness) and he completed 1 year and 6 months of active service and he had 224 days of lost time. It also shows he was awarded or authorized: * National Defense Service Medal * Parachutist Badge 5. By regulation (AR 635-212), an individual is subject to separation when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort is unlikely to succeed. 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 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. One potential outcome discussed was to grant clemency by upgrading the characterization to Under Honorable Conditions (General) based upon the type of misconduct and the passage of time. However, based upon the relatively short term of military service completed prior to a pattern of misconduct , as well as a lack of character evidence from the applicant showing he has learned from the events resulting in the 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 : : X: GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING 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 (Personnel Separations- Discharge Unfitness and Unsuitability) in effect at the time, sets forth basic authority for the separation of enlisted personnel. An individual is subject to separation when it is clearly established that: a. Despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort is unlikely to succeed. b. Rehabilitation is impracticable (as in cases of confirmed drug addiction) or he is not amendable to rehabilitation measures (as indicated by medical and/or personal history record; c. An unfitting medical condition (AR 40-501) is not the direct or substantial contributing cause of his unfitness (para 9b). 3. AR 635-5-1 (Separation Program Number (SPN) Codes), in effect at the time of the applicant's separation from active duty, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN codes to be entered on the DD Form 214. It identifies the SPN code of “386” as the appropriate code to assign enlisted Soldiers discharged for unfitness. 4. AR 635-200 (Active Duty Enlisted Separations)currently in effect, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9f (Issuance of an undesirable discharge) states an undesirable discharge is an administrative separation from the service under conditions other than honorable. b. 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. c. 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. 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. ABCMR Record of Proceedings (cont) AR20170003355 2 1