ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 9 October 2019 DOCKET NUMBER: AR20170006575 APPLICANT REQUESTS: an upgrade of his characterization of service from under other than honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 17 March 1968 * DD Form 214, dated 28 June 1972 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 (ABCMR) 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, after serving in combat in Vietnam and receiving a Bronze Star Medal, he was reassigned to Service Battery, 1/19th Artillery at Fort Carson, Colorado. He submitted a leave request for the time to relocate his family from Ohio to Colorado. Upon returning from relocating his family, he was informed that his leave request was not processed and that he was being charged with being absent without leave (AWOL). He is currently a homeless veteran. 3. The applicant provides: a. DD Form 214, dated 17 March 1968, which states that the applicant was honorably transferred to the United States Army Reserve (USAR) under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for early separation from overseas. He had 1 year, 11 months, and 13 days of active service. b. DD Form 214, dated 28 June 1972, which states that the applicant was discharged with an under conditions other than honorable characterization of service under the provisions of AR 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness (frequent involvement in incidents of a discreditable nature with civil or military authorities). He had 1 year, 6 months, and 2 days of active service. 4. A review of the applicant’s service record shows: a. He was inducted into the Army of the United States on 5 April 1966. He served in: * Germany from 28 August 1966 to 16 March 1968 * Vietnam from 9 January 1971 to 19 December 1971 b. His DA Form 20 (Enlisted Qualification Record) block 44, reflects that he was: * AWOL for a period of 29 days from2 March 1972 to 30 March 1972 * confined for a period of 22 days from 31 March 1972 to 21 April 1972 * AWOL for a period of 3 days from 12 May 1972 to 14 May 1972 c. On 19 September 1966, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 for one specification of violating a lawful order d. On 27 February 1967, the applicant accepted NJP under the provisions of Article 15 for one specification of failure to be at appointed place of duty. His punishment consisted, in part, of reduction to (private) E-2/PV2. e.. On 1 August 1967, the applicant accepted NJP under the provisions of Article 15 for one specification of failure to be at appointed place of duty. His punishment consisted, in part, of reduction to E-2/PV2. f. On 27 January 1968, the applicant accepted NJP under the provisions of Article 15 for one specification of failure to obey a lawful order. g. His DD Form 214, on 17 March 1968, that the applicant was honorably transferred to the USAR under the provisions of AR 635-200 for early separation from overseas. He had 1 year, 11 months, and 13 days of active service. h. He enlisted in the Regular Army on 3 November 1970. i. On 4 November 1971, the applicant accepted NJP under the provisions of Article 15 for one specification of sleeping at his post. His punishment consisted, in part, of reduction to (private first class) E-3/PFC (suspended). j. On 1 May 1972, the applicant appealed NJP under the provisions of Article 15 for one specification of AWOL for a period of 29 days from 2 March 1972 to 30 March 1972. His punishment consisted, in part, of reduction to E-2/PV2. His appeal was denied on 19 May 1972. k. On 16 May 1972, the applicant accepted NJP under the provisions of Article 15 for three specifications of AWOL for a period of 5 days, and one specification of failure to obey a lawful order. His punishment consisted, in part, of reduction to E-1/PVT (suspended). l. On 24 May 1972, his immediate commander notified him that action was being initiated to separate him and formally initiated separation action against the applicant under the provisions of AR 635-212, based on unfitness, a pattern of shirking of duties, and frequent involvement in incidents of a discreditable nature with civil or military authorities. m. On 8 June 1972, the applicant acknowledged the commander’s intent to separate him under the provisions of AR 635-212, and sought counsel. He acknowledged: * he has been advised of the basis for the separation and its effects * he waived representation by counsel and a personal appearance before a board of officers * may be ineligible for many or all benefits as a veteran under both Federal and State Laws * he may expect to encounter substantial prejudice in civilian life because of a general under other than honorable conditions discharge n. On 8 June 1972, the chain of command reviewed the separation recommendation and subsequently recommended approval of the separation with a characterization of service as under other than honorable conditions. o. On 26 June 1972, following a legal review for legal sufficiency, the separation authority approved the recommendation for separation for unfitness and ordered his service be characterized as under other than honorable conditions. He also waived a hearing before a board of officers, and rehabilitative measures. p. His DD Form 214, reflect that on 28 June 1972, the applicant was discharged with an under conditions other than honorable characterization of service under the provisions of AR 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness (frequent involvement in incidents of a discreditable nature with civil or military authorities). He had 1 year, 6 months, and 2 days of active service. He had 23 days lost time from 2 March 1972 to 21 April 1972 and from 12 May 1972 to 14 May 1972. q. He applied to the Army Discharge Review Board (ADRB) and on 1 February 1982, the Board denied his application for an characterization of service upgrade, and determined the separation was equitable. 5. By regulation AR 635-212, 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. 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, which included multiple AWOL offenses, 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 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 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), establishes policy and provides procedures and guidance for eliminating enlisted personnel who are found to be unfit or unsuitable for further military service. 3. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. a. 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. A discharge, under other than honorable conditions is an administrative separation from the service under conditions other .than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of service. 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170006575 6 1