ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  1 November 2019

	DOCKET NUMBER:  AR20170004558


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

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)
*	Self-authored Statement

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 Number AR20040000114 on 18 April 2005.

2.  The applicant states he would like for his discharge to be upgraded to see if he is 
entitled to some of his Veterans’ benefits.  He enlisted when he was 17 years old, 
but before that he had a daughter.  He completed basic training and advanced 
individual training and spent 11 months in Vietnam.  He requested several times to 
be able to go back to school and always was denied, which is why he ended up 
going absent without leave.  He got advice from a lawyer who told him that he had 
lost too much time and to accept his discharge. He was unaware of the option to 
request and upgrade until recently. 

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

	a.  He enlisted in the Regular Army on 19 January 1967

	b.  He served overseas in Vietnam from 1 August 1967 until 22 July 1968.

	c.  On 9 May 1968, he accepted non-judicial punishment, under the provisions of 
Article 15, Uniform Code of Military Justice, for failing to report to his appointed place 
of duty on 1 May 1968.  His punishment included a reduction in grade to private/E-2.

	d.  On 16 October 1968, he was convicted by Special Court-Martial Order 
Number 68 for one specification of departing his unit in an absent without leave 
(AWOL) status on 11 September 1968 and did not return to military control until 
23 September 1968.  The court sentenced him to be confined at hard labor for 
3 months and to forfeit $73.00 pay per month for 3 months.

	e.  On 17 October 1968, his sentence was changed to confinement at hard labor 
for 2 months and hard labor for 1 month without confinement and forfeiture of $73.00 
pay per month for 3 months is approved by the convening authority and ordered duly 
executed. 

	f.  On 25 August 1969, he was convicted by Special Court-Martial Order Number 
1066 for two specifications of AWOL from 3 February 1969 to 10 March 1969 and 
from 24 March 1969 until 9 May 1969.  The court sentenced him to forfeit $50.00 
pay per month for 3 months and confined at hard labor for three months.

	g.  On 5 September 1969, the convening authority approved the sentence and 
ordered the sentence executed.

	h.  On 1 July 1970, he was convicted by Special Court-Martial Order Number 
407 for two specifications of AWOL from 16 November 1969 to 24 March 1970 and 
from 2 May 1970 until 10 June 1970.  The court sentenced him to forfeit $30.00 pay 
per month for 4 months and confined at hard labor for three months.

	i.  On 9 July 1970, the convening authority approved the sentence and ordered 
the sentence executed.

	j.  On 14 July 1970, the applicant’s immediate commander notified him that he 
was considering the applicant for elimination from military service for unfitness, 
under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – 
Discharge – Unfitness and Unsuitability).  He advised the applicant of his rights.

	k.  On 3 August 1970, having been advised by counsel, the applicant 
acknowledged the basis for contemplated action to separate him for unfitness under 
AR 635-212.  He waived consideration of his case by a board of officers and a 
personal appearance before a board of officers.  He elected not to submit a 
statement in his own behalf and waived representation by counsel.  He 
acknowledged that:

*	he understood that he may expect to encounter substantial prejudice in 
civilian life in the event 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 all benefits as 
a veteran under both Federal and State laws and he may expect to encounter 
substantial prejudice in civilian life

	l.  His immediate commander initiated action to separate the applicant from the 
Army under the provisions of AR 635-212.  The discharge was recommended due to 
repeated and lengthy periods of AWOL, excessive time lost in the service, 
resistance to authority and regulations, and a pattern of behavior which renders him 
a complete loss to the service. 

	m.  On 18 August 1970, the separation authority approved the discharge under 
the provisions of AR 635-212 with the issuance of an undesirable discharge 
certificate.

	n.  The applicant was discharged from the Army on 21 August 1970.  His DD 
Form 214 shows he was discharged by reason of AR 635-212 due to unfitness and 
was issued an under conditions other than honorable discharge.  He completed 
2 year, 1 month and 7 day of active service with 352 days of lost time.  

4.  By regulation, action will be taken to separation an individual 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 individual separated by 
reason of unfitness will be furnished an Undesirable Discharge Certificate.

5.  The Board should consider the applicant’s petition and his service record in 
accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

The Board carefully considered the applicants request, supporting documents, 
evidence in the records and published DoD guidance for consideration of discharge 
upgrade requests.  The Board considered the applicant's statement, his record of 
service, the frequency and nature of his misconduct, the reason for his separation 
and whether to apply clemency.  The Board found insufficient evidence of in-service 
mitigating factors for the misconduct and the applicant provided no evidence of post-
service achievements or letters of support to weigh a clemency determination.  
Based on a preponderance of evidence, the Board determined that the character of 
service the applicant received upon separation was not in error or unjust.
   
   

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.  AR 15-185 (Army Board for Correction of Military Records (ABCMR)) states 
ABCMR members will review all applications that are properly before them to 
determine the existence of an error. The ABCMR will decide cases on the evidence 
of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a 
hearing.  Applicants do not have a right to a hearing before the ABCMR.  The 
Director or the ABCMR may grant a formal hearing whenever justice requires. 

2.  Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness 
and Unsuitability), in effect at the time, set forth the policy for administrative 
separations for unfitness.  

	a.  Paragraph 3 (Policy) states action will be taken to separate an individual 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
*	Rehabilitation is impracticable (as in cases of confirmed drug addiction) or 
he is not amenable to rehabilitation measures (as indicated by the medical 
and/or personal history record)
*	An unfitting medical condition is not the direct or substantial contributing 
cause of his unfitness

	b.  Paragraph 4 (Types of Separation) states an individual separated by reason 
of unfitness will be furnished an Undesirable Discharge Certificate except that an 
honorable or general discharge certificate may be awarded if the individual being 
discharged has been awarded a personal decoration or if warranted by the particular 
circumstances in a given case.

3.  AR 635-200 (Personnel Separations - Enlisted Separations), currently in effect, 
sets forth the basic policy for separation of enlisted personnel.

	a.  Paragraph 1-9d (Honorable Discharge) states that 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 of 
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 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.  

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)	 AR20170004558

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