ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 21 October 2019 DOCKET NUMBER: AR20170003701 APPLICANT REQUESTS: reconsideration for the upgrade of his under other than honorable conditions (UOTHC) discharge to honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * two DD Form 149s (Application for Correction of Military Record) * photo and applicant statement * DD Form 214 (Armed Forces of the United States (U.S.) Report of Transfer or Discharge) * Army Board for Correction of Military Records (ABCMR) decision for 2 March 2012 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 Numbers AR200037146 on 2 May 2000 and AR20120000647 on 2 March 2012. 2. The applicant states he was exposed to conditions that made him make irrational judgements. The product in the package is different and the report is incorrect. 3. The applicant provided a photo with a statement. He joined the Army in 1968, 2 months prior to his graduation from high school. He got his general educational development. One month before his tour of 18 months was over he was in a vehicle going back to Camp Enari. A package was thrown (a package like the image shown on page three of the packet) from the vehicle. There was approximately twenty service men in the vehicle, each of them were individually patted down when they came through the gate. One of the military police picked up the cigarette package and arrested him. After being sent to LBJ for several months, he was made an offer to complete jail time and be sent home or go home immediately. He chose to be sent home immediately. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 20 September 1968. b. He served in Vietnam from 21 March 1969 to 10 May 1970. c. The applicant received numerous DA Form 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice) and two special court martials (SCM) on/for: * Article 15, on 20 March 1969, absent without leave (AWOL) from 3-19 March 1969, forfeiture of $20 and reduced to private (PVT/E1) * Article 15, on 26 September 1969, failed to go at the time prescribed to his place of duty on 12 September 1969, forfeiture of $20 per month for one month, and restriction and extra duty for 14 days * Article 15, on 16 October 1969, disobeyed a lawful order on 3 October 1969 and failed to go at the time prescribed to his place of duty on 5 October 1969, forfeiture of $30 per month for one month, and extra duty for 14 days * Article 15, on 3 January 1970, failed to go at the time prescribed to his place of duty on 30 December 1969, forfeiture of $15 per month for one month, and extra duty for 14 days * SCM order number 3, on 6 January 1970, disobeyed a lawful order on 28 October 1969, and absent himself from his place of duty on five separate occasions between 29 October and 4 November 1969, reduced to PVT/E1, and forfeiture of $82 per month for 3 months, sentence adjudged on 17 December 1969 and convening authority approved on 6 January 1970 * Article 15, dated 10 January 1970, absent from unit from 31 December 1969 to 1 January 1970 and failed to obey curfew on 31 December 1969, extra duty for 45 days d. On 27 December 1969, his immediate commander recommended him for a bar to reenlistment and the approval authority approved the bar to reenlistment on 12 January 1970. e. He was convicted by SCM order number 10 on 16 February 1970, for wrongfully having in his possession, one ounce, more or less, of marijuana, and one ounce, more or less, of a habit forming narcotic drug (opium) on 10 February 1970. He was sentenced to confinement at hard labor for 4 months, and forfeiture of $75 per month for 4 months. His sentence was adjudged on 14 February 1970 and approved by the convening authority on 16 February 1970. f. On 14 April 1970, a psychiatric evaluation was conducted. The examiners stated the applicant was and is mentally responsible, able to distinguish right from wrong, and adhere to the right, and has the mental capacity to understand and participate in board proceedings. They recommended that the applicant be administratively separated from the military under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). g. On 15 April 1970, the applicant's immediate commander notified the applicant of his intent to initiate action to separate him from the Army under the provisions of AR 635-212 by reason of unfitness. He advised the applicant of his rights. h. On 18 April 1970, the applicant acknowledged he had been advised by counsel of the basis for the contemplated action to separate him for unfitness. He waived consideration of his case by a board of officers and personal appearance before a board of officers. He did not submit a statement on his own behalf. He acknowledged that: * he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he understood that in the event of the issuance of an undesirable discharge under conditions other than honorable, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he may encounter substantial prejudice in civilian life i. On 22 April 1970, the applicant's immediate commander initiated action to discharge him for unfitness under the provisions of AR 635-212 prior to his expiration of term of service and be furnished an undesirable discharge certificate. The commander listed the applicant's extensive history of misconduct, habits and traits of character manifested by repeated commission of court-martial offenses. j. On 22 April 1970, the intermediate commander recommended approval and waiver of counseling and rehabilitation. k. On 5 May 1970, the separation authority approved the discharge action for unfitness under the provisions of AR 635-212, waiver of counseling and rehabilitation with the issuance of an undesirable discharge certificate and reduction to the lowest enlisted pay grade. l. On 9 May 1970, SCM order number 103, suspends the unexecuted portion of the sentence to confinement at hard labor for four months for SCM cases, order number 10, adjudged on 14 February 1970 and order number 24, adjudged on 6 January 1970. Both are suspended until 10 June 1970, unless the suspension is sooner vacated, the suspended portion of the sentence will be remitted without further action. m. He was discharged from active duty on 12 May 1970. He was discharged under the provisions of AR 635-212 by reason of unfitness with separation program number 28B (unfitness) with a character of service of under other than honorable conditions. He completed 1 year, 5 months, and 3 days. He had 80 days of lost time. His DD Form 214 shows he was awarded or authorized: * National Defense Service Medal * Vietnam Service Medal * Vietnam Campaign Medal 5. On 4 February 1971, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. On 17 September 1971, the ADRB determined he was properly discharged and denied his request. 6. On 16 January 1981, the applicant applied again to the ADRB for an upgrade of his discharge. On 2 February 1982, the ADRB determined he was properly discharged and denied his request. 7. On 4 January 2012, the applicant requested an upgrade of his discharge through the ABCMR. On 2 March 2012, the ABCMR’s response states the applicant’s records shows that he has previously requested reconsideration of ABCMR Docket Number AC82-01889. Records show his previous request for reconsideration was acted upon in ABCMR Docket Number AR200037146 on 2 May 2000: This decision on the request for reconsideration was the final administrative action taken by the Secretary of the Army. The applicant’s previous ABCMRs are unavailable for the Board to review. 8. By regulation, AR 635-212, individuals 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, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. An undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge. 9. In reaching its determination, the Board can consider the applicant’s petition and his service record IAW the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. 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 short term of honorable service completed prior to a pattern of misconduct, 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 to amend the decisions of the ABCMR set forth in Docket Number AR200037146 on 2 May 2000 and AR20120000647 on 2 March 2012. 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, set forth the policy for administrative separation for unfitness. It provided that individuals 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, sexual perversion, 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 an honorable or a general discharge. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic policy for the separation of enlisted personnel. a. Paragraph 1-9d, 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. Paragraph 1-9e, 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. 4. 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) AR20170003701 5 1