ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 April 2019 DOCKET NUMBER: AR20170003864 APPLICANT REQUESTS: his general under honorable conditions be upgraded to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Police record check * Report of medical examination * Statements for enlistment * Statements for enlistment Army career group option * Enlistment contract * Special orders number 118 * DA Form 20 (Enlisted Qualification Record) * DA Form 20B (Insert sheet to DA Form 20 Record of Court-Martial Conviction) * Special orders number 61 * DD Form 214 (Report of Separation from Active Duty) 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 he went absent without leave (AWOL) because his pay was messed up for so long that his family was starving. He went home, worked, and came back. The discharge was unnecessarily harsh. Please see his disciplinary records and pay records. 3. The applicant provides several enlistment-related documents, including Police Record Check, Report of Medical History, Report of Medical Examination, Statements for Enlistment, Enlistment Contract, enlistment order, and other supporting documents. 4. A review of the applicant’s record shows: a. He enlisted into the Regular Army on 9 June 1972. b. On 7 December 1973, he was convicted by a special court-martial of the charge and its one specification of being AWOL from 4 June 1973 to 1 October 1973. The court sentenced him to reduction to private/E-1, confinement at hard labor for two months, and forfeiture of $75 pay per month for two months. The convening authority approved the sentence on 13 December 1973 c. On 24 January 1974, the applicant had a mental status evaluation which showed no significant mental illness. e. On 4 February 1974, his immediate commander recommended him for discharge under provisions of AR 635-200 Personnel Separations-Enlisted Personnel paragraph 13-5 (unsuitability). The commander: * recommend him for discharge for unsuitability because of apathy; discharge for unfitness was not deemed proper due to his lack of interest and defective attitude * he was sent to the Retraining Brigade for the purpose of receiving correctional training and treatment necessary to return him to duty as a well- trained Soldier with improved attitude and motivation * he had received extensive counseling by members of the leadership teams, the unit social worker, and members of the professional staff agencies * these efforts to develop him into a productive Soldier were met with negative results due to his lack of interest and defective attitude * he received considerable counseling since his arrival at this facility by the social workers, leadership team and unit cadre but did not respond favorably to this counseling nor from duties given him d. He was advised by counsel of the basis for the contemplated action to separate him under chapter 13 and acknowledged the following: * the basis for the contemplated action to accomplish his separation for unsuitability under chapter 13, AR 635-200 * he waived consideration of his case by a board of officers and/or personal appearance before a board of officers * statements in his own behalf are not submitted * he waived representation by any counsel * he understands that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued to him * he understands that he may, up until the date the discharge authority directs or approves his discharge, withdraw this waiver and request that a board of officers hear his case e. On 4 February 1974, his intermediate commander concurred with the recommendation to discharge him under chapter 13. f. On 7 February 1974, the separation authority directed discharge under the provisions of chapter 13, Army Regulation 635-200. g. On 12 February 1974, the applicant was discharged under the provisions of AR 635-200, paragraph 13-5b(2) with an under honorable conditions (general) characterization of service. He completed 1 year, 2 months, and 19 days of active service and he had 165 days of lost time. He was awarded the National Defense Service Medal. 5. By regulation, enlisted Soldiers could be eliminated for unfitness or unsuitability. A Soldier could be separated for unsuitability whose record shows apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. 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. The Board concluded that based upon the lengthy AWOL offense and a relatively short term of service prior the AWOL that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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. 5/7/2019 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. 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) 635-200 Personnel Separations-Enlisted Personnel, in effect at the time, sets for the basic authority for separations of enlisted personnel. a. Paragraph 1-9d (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 1-9e (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. When a member’s service is characterized as a general, except when discharge 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. Paragraph 13-5b(1) (Inaptitude) Applicable to persons who are best described as inept, due to lack of general adaptability, want of readiness of skill, un-handiness, or inability to learn. d. Paragraph 13-5b(2) (Character and behavior disorders) states as determined by medical authority, character and behavior disorders and disorders of intelligence as suggested by various symptoms as enuresis or somnambulism, listed in TB MED 15, except for combat exhaustion (3263) and other acute situational maladjustments (3264), when such disorders are chronic and recalcitrant to attempts at rehabilitation and interfere with the serviceman's ability to adequately perform his duties. e. Paragraph 13-5b(3) Apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively. While lack of appropriate interest or other defective attitudes may be manifested in conjunction with physical defects or mental or organic diseases, including psychoneurosis, these traits are not necessarily produced by the physical or disease process. On the other hand, individuals considered for elimination may attempt to excuse immature, inadequate, and undisciplined behavior on the basis of minor or non-disabling illnesses. The presence of a physical or mental disease or defect-producing impairment of function insufficient to warrant separation under the provisions of AR 635-40 and related regulations in no bar to discharge for unsuitability. 3. Army Regulation 635-200, which superseded Army Regulation 635-212, was revised on 1 December 1976, following settlement of a civil suit. Thereafter, the type of discharge and the character of service were to be determined solely by the individual's military record during the current enlistment. Further, any separation for unsuitability based on personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry. In connection with these changes, a Department of the Army Memorandum dated 14 January 1977, and better known as the Brotzman Memorandum, was promulgated. It required retroactive application of revised policies, attitudes and changes in reviewing applications for upgrade of discharges based on personality disorders. A second memorandum, dated 8 February 1978, and better known as the Nelson Memorandum, expanded the review policy and specified that the presence of a personality disorder diagnosis would justify upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given. Conviction by general court-martial or by more than one special court-martial was determined to be "clear and demonstrable reasons" which would justify a less than fully 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.