ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  26 June 2019

	DOCKET NUMBER:  AR20170006852


APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge

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)
* Self-authored Statement

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:

     a.  He is asking for an upgrade in order to apply for medical benefits.  While in the service, he began using marijuana and his work performance suffered and he was only 17 years old and was swayed by peer pressure.  

     b.  However, today he is a mature man who was a pipefitter in an offshore drilling field and was very successful.  He is asking for the Board to consider his request for an upgrade.

3.  The applicant provides a detailed self-authored statement which is attached describing the incident and his military and personal experiences. 

4.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 25 May 1971.

	b.  He served overseas in Korea from 28 January 1972 until 25 November 1972.

	c.  He accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, (UCMJ) on/for:

* on 8 July 1971, for failing to be at his appointed place of duty at the prescribed time
* on 30 June 1972, for theft
* on 6 September 1972, he accepted NJP for an offense but the reason is unclear due to faded documents

	d.  19 October 1972, the applicant’s immediate commander notified him that he was considering the applicant for elimination from military service for unfitness, under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  He advised the applicant of his rights.

	e.  On 31 October 1972, having been advised by counsel, the applicant acknowledged 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 a statement in his own behalf and waived representation by counsel.  He 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

	f.  On 1 March 1971, his immediate commander initiated action to separate the applicant from the Army under the provisions of AR 635-212.  The discharge was recommended due to incidents of discreditable nature with civil and military authorities, suspected use and possession of marijuana and an established pattern of shirking.
 
	g.  On 17 November 1972, the separation authority approved the discharge under the provisions of AR 635-212 with the issuance of an undesirable discharge certificate and reduced to private/E-1.

	h.  The applicant was discharged from the Army on 25 November 1972.  His DD Form 214 shows he was discharged by reason of AR 635-212 due to unfitness and was issued an under other than honorable conditions discharge.  He completed 1 year,        6 months and 1 day of active service with no lost time.  He was awarded or authorized the:

* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
* Armed Forces Expeditionary Medal

5.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his character of service.  After considering the evidence, the ADRB denied his request.

6.  By regulation, action will be taken to separation 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.

7.  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 prioro to multiple incidents of a criminal nature, 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) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), in effect at the time, set forth the policy for administrative separations for unfitness.  

	a.  Paragraph 3 (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 4 (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.

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

	a.  Paragraph 1-9d (Honorable Discharge) states that 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 of current period of service with due consideration of the member’s age, length of service, grade, and general aptitude.  

	b.  Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.  When a member’s service is characterized as general, except when discharged by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record.  

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)	 AR20170006852


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