ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  18 June 2019

	DOCKET NUMBER:  AR20170005346


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

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)
* Outline:  What you should know about chapter 13, Army Regulation (AR) 
635-200 

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 believe he was given the wrong character of service discharge under chapter 13.  He was told he was going to get a general, under honorable conditions discharge, but instead received an under conditions other than honorable.  He is currently trying to receive Veteran Affairs health benefits and is unable to do so with his discharge.

3.  The applicant provides:

	a.  His DD form 214 which shows his service from 15 July 1972 to 10 September 1973.

	b.  The Army trial defense service region, field office outline of what you should know about chapter 13 separation for unsatisfactory performance.  It outlined the basis for a chapter 13, what must the commander do before they can initiate a chapter 13, procedures, rights, type of discharge, effect of different kinds of discharges, upgrading the discharge, timing of separations, ways to fight the discharge and states if you have question on these matters, or need any other assistance, speak with a defense attorney.  

4.  The applicant’s service record shows:  

	a.  He enlisted in the Regular Army on 17 July 1972.  He was assigned to the 1st Battalion, 44th Air Defense Artillery, Korea 22 September 1972 to 16 June 1973 and the Army Retraining Brigade, Fort Riley, KS from 21 August 1973 to 10 September 1973.  

	b.  The DA Form 20B (Insert sheet to DA Form 20 – Record of Court Martial Conviction) shows that he was charged on 8 August 1973, with one specifications of unlawfully strike Corporal X__ in the face with his fist, and one specification of willfully destroyed by kicking a plaster board in the barracks, property of the United States (U.S.) Government.  His punishment in part consisted of reduction to E-1, forfeiture of $50 per month for two months, and 75 days confinement at hard labor.  

	c.  He accepted nonjudicial punishment on:  

* 11 October 1972, for failure to be at his appointed place of duty
* 24 February 1973, for possession of marijuana

	d.  On 12 July 1973, he was convicted by a special court-martial and charged with one specifications of unlawfully strike Corporal X__ in the face with his fist, willfully destroyed by kicking a plaster board in barracks, property of the United States (U.S.) Government, approved and duly executed on 8 august 1973.  

	e.  On 27 August 1973 the applicant was seen to determine if he had any emotional or psychological conditions that would interfere with is performing adequately in the military.  It was determined by the social worker that he appeared to have no problems other than an attitude that showed no desire to abide by Army Regulations.  

	f.  He underwent a medical examination on 30 August 1973, and the examiner determined that he was qualified for separation.  

	g.  He underwent a mental evaluation on 31 August 1973, the examiner determined that he was mental responsible, able to distinguish right from wrong, able to adhere to the right, was mental capacity to understand and participate in board proceedings.  

	h.  On 5 September 1973, the applicant's immediate commander notified the applicant of his intent to separate him under the provisions of AR 635-200, for unfitness, because of frequent incidents of a discreditable nature.  A discharge for unsuitability was not deemed appropriate because his behavior was not due to an inability to satisfactorily perform within the meaning of unsuitability.  He was sent to the brigade for the purpose of receiving correctional training and treatment necessary to return him to duty as a well-trained Soldier with an improved attitude and motivation.  However, his actions since arrival preclude accomplishment of the objective as evidenced by his receipt of eleven adverse observation reports.  He had demonstrated a disregard for military authority and indicated no desire for returning to duty.  It was obvious that his primary objective is to be eliminated from the military service by any means.  He had received extensive counseling by members of the leadership teams, the unit social worker, and members of the professional staff agencies but did not respond to their efforts. In his opinion, the applicant possessed the mental and physical ability necessary to be an effective Soldier, but his attitude and his failure to react constructively to the rehabilitation program were clearly indicative that he not be retained in the service.  He recommend that the requirements for further counseling and rehabilitation be waived and informed the applicant of his rights to:  

* present his case before a board of officers
* submit a statement in his own behalf, he did not present a statement on his own behalf
* to be represented by counsel
* to waive the above rights

	i.  Consistent with the chain of command recommendations on 7 September 1973, the separation authority approved the request for discharge under the provisions of AR 635-200, for unfitness.  He directed that he be furnished an undesirable discharge certificate, further rehabilitative requirements were waived.  

	j.  The applicant was discharged from active duty on 10 September 1973, under the provisions of AR 635-200, chapter 13, for unfitness, SPD 28B - unfitness, is an established pattern for showing dishonorable failure to contribute adequate support to dependents or failure to comply with order, decrees, or judgment of a civil court concerning support of dependents His service characterization is under conditions other than honorable.  His DD Form 214 shows he completed 11 months, and 8 days of active service this period.  He had 78 days of lost time from 16 June 1973 to 9 September 1973.  

5.  By law and regulation, periods of AWOL, confinement, and desertion are considered lost time which is not creditable service for pay, retirement, or veterans' benefits.  The lost time is required to be listed on the DD Form 214 even if the periods of time lost were later made up.  

6.  The regulation in effect at the time for unfitness states an individual is subject to separation under the provisions of this chapter when one or more of the following conditions exits due to unfitness:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault upon a child or other indecent acts of offenses.  

7.  Army Regulation, SPN 28B - Unfitness, is an established pattern for showing dishonorable failure to contribute adequate support to dependents or failure to comply with order, decrees, or judgment of a civil court concerning support of dependents.

8.  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, the Board determined there is insufficient evidence to grant relief.  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.  Based upon the short term of service prior to a pattern of misconduct, some including violent behavior towards others, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his separation, 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 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.  AR 635-200, in effect at the time, sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.  Chapter 13, establishes policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  

	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.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).  

	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 because 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 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.  

	d.   Paragraph 13-7 (Counseling) states when an individual's behavior has been such that continued behavior of a similar nature may warrant action against him, the individual will be counseled by a responsible person or persons.  

3.  AR 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), currently in effect, sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  

* Chapter 4, states that personnel who are physically unfit for retention but who were accepted for, or continued in, military service, will not be separated because of expiration term of service unless processing for separation because of physical disability is waived
* Chapter 13, states Soldier may be separated per this chapter when it is determined that he/she is unqualified for further military service because of unsatisfactory performance. This reason will not be used if the Soldier is in entry-level status

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.


ABCMR Record of Proceedings (cont)	 AR20170005346


5


1