ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  22 May 2019

	DOCKET NUMBER:  AR20170005479


APPLICANT REQUESTS:  an upgrade of his under honorable conditions discharge to an 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)

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 suffered extenuating circumstances.  His parents had died and he was reared by his grandparents as their “only living son.”  Upon the death of his grandfather, he needed to go home for the funeral and to care for his aging grandmother.  He requested release from duty and his lieutenant assured him the discharge would be honorable.  He also states that he only recently learned his character of service was under honorable conditions which prevents his enrollment in Veterans Administration healthcare.  He further states he only agreed to an early discharge with the understanding that his discharge would be honorable and he feels as though the lieutenant lied to him.

3.  A review of the applicant’s record show:

	a.  He enlisted in the Regular Army on 16 January 1967.

	b.  He served in Germany from 10 January 1968 to 28 August 1968.

	c.  He received nonjudicial punishment on:

* 22 June 1967 for failure to obey a lawful general regulation
* 6 December 1967 for being absent without leave (AWOL), from on or about 17 September 1967 to on or about 16 October 1967
* 10 January 1969 for being AWOL, from on or about 27 December 1968 to on or about 30 December 1968

	d.  On 9 December 1968, the applicant was convicted by summary court-martial of one specification of being AWOL from on or about 2 October 1968 to on or about 20 November 1968.  The court sentenced him to hard labor for 45 days and forfeiture of pay for 1 month (suspended for 4 months).

	e.  On 6 January 1969, the unexecuted portion of the sentence approved on 9 December 1968 was vacated and ordered executed.

	f.  On 23 June 1969, the applicant’s immediate commander notified him of the command’s intent to separate him from military service for unfitness, under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), for unfitness.  The applicant was advised of his rights.

	g.  On 23 June 1969, the applicant acknowledged receipt of the notification of separation action and consulted with counsel who advised him of 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 statements in his own behalf and waived representation by counsel.  He also 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

	h.  Consistent with the chain of command recommendations, and on an unspecified date, the separation authority approved the applicant’s discharge under the provisions of AR 635-212 with the issuance of a General Under Honorable Conditions Discharge Certificate in the rank of private/E-2.

	i.  The applicant was discharged from active duty on 11 July 1969.  His DD Form 214 shows he was discharged under the provisions of AR 635-212 with his service characterized as under honorable conditions.  He completed 2 years, 1 month, and 16 days of active service with 130 days of lost time.  His DD Form 214 also shows he was awarded or authorized the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14).

4.  By regulation/directive, 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.

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 a short term of service completed prior to a pattern of misconduct, as well as a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to discharge, 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), in effect at the time, set forth the policy for administrative separations for unfitness.

	a.  Paragraph 3a (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 4a (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.

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

	a.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier’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.

	b.  Paragraph 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.


3.  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)	 AR20170005479


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