ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  2 July 2019

	DOCKET NUMBER:  AR20170006393


APPLICANT REQUESTS:  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)
* two DD Forms 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 his DD Form 214, for the period ending on 17 May 1966, shows his character of service as under other than honorable conditions.  In 1965 or 1966, he was a victim of a stabbing from a member of his company.  He was stationed at Red River Army Depot in Texarkana, TX, at the time of the attack.  Shortly after his release from the hospital, he was notified of his pending discharge from the U.S. Army.  At the time, he was told that his character of service would be honorable.  It was not until 2000, he realized that his character of service was under other than honorable conditions.  He believes his discharge is unjust because he was misled by his command, he was constantly volunteering for assignment to Vietnam, and prior to the attack he was never involved in any incidents for misconduct.

3.  The applicant provides a DD Form 214 showing served on active duty as a member of the U.S. Marine Corps Reserves from 31 July 1970 until his honorable discharge on 26 February 1972.

4.  Review of the applicant’s military record shows:

	a.  He enlisted in the Regular Army on 30 August 1963, for 3 years.  
	b.  On 10 October 1963, he underwent a psychiatric examination.  The examining psychiatrist diagnosed the applicant with an inadequate personality, chronic, severe.  He stated the condition was not amendable to psychiatric treatment in the military setting.  He found the applicant was mentally able to distinguish right from wrong and to adhere to the right.  The diagnosis rendered the applicant unsuitable for military service and he should be discharged under the provisions of Army Regulation 635-209 (Personnel Separations – Discharge – Unsuitability).

	c.  On 13 March 1964, he accepted nonjudicial punishment (NJP) for his inability to produce an identification or liberty card when apprehended by police.

	d.  He was promoted to pay grade E-3 on 6 May 1964.

	e.  He accepted NJP on/for:

* 29 September 1964 – failing to obey a lawful order
* 14 October 1964 – wearing an improper uniform; his punishment included a reduction to pay grade E-2
* 18 November 1964 – being absent with leave (AWOL) from 15 to 16 November 1964
* 15 December 1964 – being AWOL from 23 to 24 November 1964
* 31 December 1964 – willfully disobeying a direct lawful order from his superior noncommissioned officer

	f.  On 26 January 1965, the Chief, Mental Hygiene Consul Services, stated the applicant denied responsibility for all the many NJP’s he had received.  He found the applicant had no disqualifying mental or physical defects sufficient to warrant discharge under the provisions of Army Regulation 635-40 (Personnel Separations – Physical Evaluation for Retention, Retirement, or Separation).  He recommended the applicant be administratively separated from the service under the appropriate regulation deemed available in his case.

	g.  On 9 May 1965, the separation authority approved the applicant’s discharge because of unfitness and directed the issuance of an Undesirable Discharge Certificate.

	h.  He accepted NJP on/for:

* 22 June 1965 – leaving the New Cumberland Army Depot
* 20 August 1965 – disobeying a lawful order on 15 and 16 August 1965
* 13 September 1965 – disobeying a lawful order on three occasions on 10 September 1965; his punishment included a reduction to pay grade E-1, he was reduced accordingly on 14 September 1965

	i.  He was again promoted to pay grade E-2 on 28 September 1965.
	j.  On 22 October 1965, he was convicted by summary court-martial for one specification each of breaking restriction and wrongfully using and possessing a pass with intent to deceive on 24 September 1965, and failing to go to his appointed place of duty on 8 October 1965.  The court sentenced him to confinement at hard labor for 45 days and a forfeiture of $60 pay for 1 month.  

	k.  On 16 November 1965, he accepted NJP for disobeying a lawful order.

	l.  On 22 November 1965, he underwent a psychiatric examination.  The examining medical doctor diagnosed the applicant with an inadequate personality and cleared him for any administrative disposition deemed appropriate by the command.

	m.  On 5 January 1966, the applicant’s immediate commander notified him of his intent to initiate separation action for unfitness under AR 635-208 (Personnel Separations – Discharge – Unfitness).

	n.  On 25 March 1966, the Chief, Medical Division, Red River Army Depot, stated that applicant suffered multiple stab wounds on 26 February 1966 and was sent to the hospital in Texarkana, AR.  He remained in the hospital until his dismissal on 28 February 1965.  It was apparent to him from the depth and extent of the knife wounds that an attempt had been made to kill the applicant.  He was at the present time asymptomatic and should have no difficulty as a result of his knife wounds.

	p.  He was discharged from active duty, in pay grade E-1, on 17 May 1966, under the provisions of AR 635-208.  His DD Form 214 shows he completed 2 years, 8 months, and 16 days of net active service.  His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate.  

5.  By regulation, individuals will be discharged by reason of unfitness when it is determined they are unfit for further military service despite reasonable attempts to rehabilitate or rehabilitation is impracticable.  When discharged because of unfitness, DD Form 258a (Undesirable) will be furnished.  

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, the Board determined relief is not warranted.  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.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the short term of honorable service completed prior to a pattern of misconduct, as well as the failure to accept responsibility and show remorse for 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.  Army Regulation (AR) 635-208 (Personnel Separations – Discharge - Unfitness) in effect at the time, stated to reference AR 635-200 (Personnel Separations – General Provisions for Discharge and Release) stated that individuals would be discharged by reason of unfitness when it was determined they were unfit for further military service despite reasonable attempts to rehabilitate or rehabilitation was impracticable.  When discharged because of unfitness, DD Form 258a (Undesirable) would be furnished 

3.  AR 635-200, in effect at the time, stated in:  

	a.  Paragraph 9 (Honorable Discharge) – an honorable discharge was a separation from the Army with honor.  The issuance of an honorable discharge was conditioned upon proper military behavior and proficient and industrious performance of duty, giving due regard to the rand or grade held and the capabilities of the individual concerned.  

	b.  Paragraph 10 (General Discharge) – a general discharge was a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge

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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The 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 on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170006393


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