ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 June 2019 DOCKET NUMBER: AR20170004857 APPLICANT REQUESTS: an upgrade of his other than honorable conditions discharge to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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 he was absent without leave (AWOL) on several occasions. He was young and immature at the time. He felt that this mother needed his presence more than the military as a result of her declining health. He wants to be buried next to his deceased significant other and an upgrade would allow that to happen. 3. A review of the applicant’s service records shows: a. He enlisted on 20 May 1964 in the Regular Army. He served in Germany from 12 April 1965 to 7 November 1966. b. He accepted nonjudicial punishment on 14 September 1964 for being AWOL from 10 September 1964 through 12 September 1964. c. He was convicted by Special Court-Martial Order Number 107 on 18 December 1964 for two specifications of AWOL from 2 November 1964 through 16 November 1964 and 18 November 1964 through 9 December 1964. The sentence consisted of confinement with hard labor for 6 months, forfeiture of $55 per month for 6 months, and to be reduced to private (PVT)/E-1. d. He was convicted by a summary court-martial on 21 March 1966 for two specifications of AWOL from 15 January 1966 through 27 January 1966 and 9 February 1966 through 25 February 1966. The sentence consisted of confinement with hard labor for 30 days, forfeiture of $50, and reduction to PVT/E-1. The confinement with hard labor for 30 days and forfeiture were suspended for 2 months. e. On 18 July 1966, Summary Court-Martial Order Number 153 vacated that portion of his summary court-martial convened on 18 December 1964 (item d above) that suspended execution of the approved sentence to confinement with hard labor for 30 days and forfeiture of $50 as a result of an AWOL from 18 April through 6 July 1966. f. He was convicted by a special court-martial on 28 July 1966 for one specification of AWOL from 18 April 1966 through 6 July 1966. The sentence consisted of confinement with hard labor for 6 months, forfeiture of $50 per month for 6 months, and to be reduced to PVT/E-1. g. On 22 December 1966, Special Court-Martial Order Number 544 suspended for 1 month the unexecuted portion of the approved sentence that included confinement with hard labor for 6 months and forfeiture of $50 per month for 6 months. h. On 8 March 1967, Special Court-Martial Order Number 105 vacated that portion of his special court-martial (item g above) effective on 22 December 1966 that suspended execution of the approved sentence of confinement with hard labor for 6 months and forfeiture of $50 per month for 6 months as a result of AWOL from 7 January 1967 through 22 February 1967. i. He was convicted by a special court-martial on 22 March 1967 for one specification of AWOL from 7 January 1967 through 22 February 1967. The sentence consisted of confinement with hard labor for 6 months and forfeiture of $50 per month for 6 months. j. The applicant’s commander initiated action to separate the applicant under the provisions of AR 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness. He recommended an Undesirable Discharge Certificate. k. After consulting with legal counsel on 1 June 1967, he acknowledged: * he was advised by counsel of the basis for contemplated action for separation for unfitness * he waived consideration of his case by a board of officers * he waived personal appearance before a board of officers * he did not submit statements on his own behalf * he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions discharge is issued * he may, as a 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 * he may expect to encounter substantial prejudice in civilian life l. Consistent with the chain of command recommendations, on 17 July 1967, the separation approval authority ordered the applicant to be discharged under provisions of AR 635-212. He was furnished an Undesirable Discharge Certificate. m. On 27 July 1967, he was discharged from active duty under the provisions of AR 635-212. His DD Form 214 shows he completed 1 year, 6 months, and 13 days of active service with 589 days lost. It also shows he was awarded or authorized: * Sharpshooter Marksmanship Qualification Badge with Rifle Bar * Marksman Marksmanship Qualification Badge with Rifle Bar 4. By regulation, 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. 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. 5. 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the short term of service completed prior to lengthy pattern of misconduct extending over multiple years, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 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), section I, paragraph 4, 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 Personnel), currently in effect, sets forth the basic authority for separation 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. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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 on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170004857 5 1