BOARD DATE: 28 February 2020 DOCKET NUMBER: AR20170004989 APPLICANT REQUESTS: his general discharge (GD) be upgraded to an honorable discharge (HD). 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) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR 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: a. He received a GD in 1968 for incorrect and unjust reasons. He has lived with the stigma of not having an HD and needs to do whatever it takes to make it right. During his period in the Army he suffered and wanted to do the right thing; however, he did not always give the right impression to his superiors. He is a relatively large black man, while that doesn’t mean as much today as it did back then. He was given the benefit of the doubt when it came to getting blamed for whatever incident he may have been involved in at that time. b. Leading up to his discharge, he was given non-judicial punishment for being involved in or causing a fight. Four white Soldiers were harassing an Italian Soldier for not carrying his weight, while he understood their frustration, beating the Soldier up was not the answer and it ticked him off. He stepped in, which resulted in them calling him out. They got into a fist fight and he was the only one punished. This was his second non-judicial punishment. After the non-judicial punishment, he was separated with a GD. At the time, he was young and misinformed as to the difference between a GD and HD. Thinking there was no difference, he felt it was best to leave the situation. He wanted to be a career Soldier and he knows he would have been a positive Soldier if he had been in a different situation and unit. 3. The applicant was inducted into the Army of the United States on 21 July 1966. 4. He accepted non-judicial punishment on the following occasions: * 17 August 1966, for being unshaven in formation * 14 September 1966, for disobeying a lawful order on two separate occasions * 27 May 1967, for refusing to go at the prescribed time to appointed place of duty * 3 July 1967, for failing to obey a lawful regulation * 7 November 1967, for being absent from his unit without proper authority * 17 January 1968, for being absent from his unit 5. On 3 July 1967, a psychiatric evaluation found the applicant met retention standards, was mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings. 6. On 23 January 1968, the applicant pled guilty and was found guilty by a summary court-martial of being absent from his unit on 20 January 1968 and leaving his appointed place of duty without proper authority on 23 January 1968. His punishment consisted of confinement at hard labor for 15 days. 7. On 25 January 1968, his commander initiated the recommendation to separate him under the provisions of Army Regulation 635-212 (Discharge – Unfitness and Unsuitability). The reason for this proposed action were because of the applicant being repeatedly subjected to punitive action and his character and behavior disorders. The commander advised him of is available rights. 8. On 23 February 1968, the applicant consulted with legal counsel. He was advised of the basis for the contemplated action to accomplish his separation for unsuitability under Army Regulation 635-212. He waived consideration of his case by a board of officers and a personal appearance before a board of officers. He did not submit statement in his own behalf and waived representation by counsel. He acknowledged he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him. 9. On 23 February 1968, an authorized official directed the applicant be discharged from the service because of suitability under the provisions of Army Regulation 635- 212 with a GD Certificate. 10. On 5 March 1968, the applicant was discharged accordingly. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-212 with a separation program number of 264 for unsuitability, character and behavioral disorders, with issuance of a GD Certificate. He completed 7 months and 24 days of total active service during this period with 11 days of time lost. 11. In reaching its determination, the Board can consider the applicant's petition, his statements, and available service record, in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s 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 and length of service, the frequency and nature of his misconduct, multiple instances of NJP and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the applicant’s misconduct and he provided no evidence of post- service achievements or letters of reference in support of 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. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. ? 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability. It provided for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by proper medical authority. When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) currently sets forth the basic authority for the separation of enlisted personnel. Paragraph 3-7a provides that 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. 4. Army Regulation 635-200 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 a 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 upgrades of discharges based on personality disorders. 5. 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. 6. 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) AR20170004989 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1