ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 July 2019 DOCKET NUMBER: AR20170006378 APPLICANT REQUESTS: reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC91-10456 on 22 April 1992. 2. The applicant states he has turned his life around for the better. He expresses that things were good when he was stateside, going to school, advanced individual training (AIT), and Vietnam. His first sergeant (1SG) was a p__ from day one. He was drinking some, as most did to cope with just being over there. It seemed if a person didn’t drink brown whiskey and beer and were a redneck that person was on that 1SG’s X__ list. He started to use drugs just to keep his head on right and then things got worse the hassle got out of hand. He got deeper and deeper into disrespect for the 1SG. One day the 1SG asked him if he wanted out and he said yes and the 1SG went in and fixed him with this discharge. If he knew then what he knows now he might have done things differently. When he got out he thought he had nothing coming and he was mad. He tried to get things changed but all the red tape and paperwork he did not understand and he did not get help and let it go. Now he does not drink or do drugs and he has gotten older and he has better feeling about things. He sees that if he wants something he has to ask and do what it takes to get it. So now he is asking that he needs help to get his discharge upgraded so he can get the help he needs. If the Board needs more he can talk on the phone and he can answer anything he can remember. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 29 October 1970. b. He served in Vietnam from 12 July 1971 to 14 January 1972. c. He accepted nonjudicial punishment (NJP) for several infractions on/for: * 17 March 1971 (before his tour in Vietnam), for being disorderly in the day room on 14 March 1971 * 8 September 1971, disrespectful toward a noncommissioned officer on 7 September 1971 * 9 September 1971, drunk and disorderly in the company area d. The facts and circumstances pertaining to the applicant’s discharge are not on file. However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged from active duty on 6 February 1972 under the provisions of AR 635-212, (Personnel Separations Discharge Unfitness and Unsuitability) paragraph 6a(1) (Unfitness) with an under other than honorable conditions characterization of service. This form shows he completed 1 year, 1 month and 8 days of active service, foreign service 6 months and 3 days, 30 days lost under 10 U.S. Code 972 from 7 January 1972 to 6 February 1972. It also shows and he was awarded or authorized: * National Defense Service Medal * Vietnam Service Medal * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Hand Grenade Bar 4. The applicant applied to the Army Board for Correction of Military Records (ABCMR) for an upgrade of his discharge and on 22 April 1992, his request was denied 5. 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 when the following conditions exist: * frequent incidents of a discreditable nature with civil or military authorities * sexual perversion * drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana * an established pattern of shirking * an established pattern of showing dishonorable failure to pay just debts 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the relatively short term of honorable 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 635-212 (Personnel Separations Discharge Unfitness and Unsuitability) then in effect, set forth the basic authority for separation of enlisted personnel for unfitness. Individuals would be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warranted a general or honorable discharge, when it had been determined an individual's military record was characterized by one or more of the following: (a) frequent incidents of a discreditable nature with civil or military authorities; (b) 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 or offenses; (c) drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana; (d) an established pattern for shirking; or (e) an established pattern showing dishonorable failure to pay just debts. 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) AR20170006378 3 1