ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 May 2019 DOCKET NUMBER: AR20170006021 APPLICANT REQUESTS: an upgrade of his general discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter of Support Statement, Mr. X * Letter of Support Statement, Reverend X 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 would like to have his discharge upgraded to honorable. 3. He provided two support statements: a. Support statement from Mr. X who states that the applicant is a man of courage and conviction. He is very active in his church and community by providing guidance and leadership. The applicant’s devotion and caring for his family speaks well of his character. He asks for favorable consideration for the applicant’s request for honorable discharge. b. Support statement from Pastor X who states that he has known the applicant for 36 years. He has known him as an outstanding man of character and status. The applicant is a person of great character and morale. The applicant has been heading the church’s school for many years. He is a man of honesty. He has not let the church down and the church is better because of the applicant character and involvement 4. Review of the applicant's service records show: a. He enlisted in the Regular Army on 7 September 1972. b. He accepted nonjudicial punishment (NJP) on 18 December 1972 for 2 instances of without authority failing to go at the time prescribed to his appointed place of duty on 11 December and 17 December 1972. His punishment consisted of a suspended reduction to private/E-1 c. He accepted NJP on 31 January 1973 for without authority failing to go at the time prescribed to his appointed place of duty on 11 December 1972. His punishment included reduction to private/E1. d. On 23 March 1973, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of paragraph 13-2 of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel) for unsuitability. e. On 26 March 1973, the applicant acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel who advised him of the basis for the contemplated separation action for unsuitability. He waived his right to a boar of officers and personal appearance before a board of officers. He further declined making a statement on his own behalf. He acknowledged that: * he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him * he understood as a result of the 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 f. Subsequent to this acknowledgement, the immediate commander formally initiated separation action against the applicant. The chain of command recommended approval. g. On 27 March 1973, the separation authority approved the applicant's discharge under the provisions of AR 635-200, paragraph 13-5b (3) for unsuitable, with his service characterized as general, under honorable conditions. h. The applicant was discharged accordingly on 9 April 1973. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged under the provisions of AR 635-200, paragraph 13, for unsuitability, Separation Code 264, with his service characterized as general under honorable conditions. He completed 7 months, and 3 days of active service. It also shows he was awarded or authorized the Nation Defense Service Medal. 5. By regulation (AR 635-200), chapter 13 action will be taken to separate an individual when it is clearly established that it is It is unlikely that he will develop sufficiently to participate in further military training and/or become a satisfactory Soldier, and he meets retention medical standards. 6. 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 a pattern of misconduct, 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 – Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. Paragraph 6a stated an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 3. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), superseded AR 635-212, and sets forth the basic authority for the 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 or current period of service with due consideration for the member’s age, length of service, grade, and general aptitude Where a member has served faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks, he may be furnished an honorable discharge. b. Chapter 13 of this regulation provides for separation due to unsuitability when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsuitability under this regulation will be characterized as honorable or under honorable conditions. 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) AR20170006021 4 1