ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 23 August 2019 DOCKET NUMBER: AR20170008446 APPLICANT REQUESTS: * his discharge be upgraded * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 “re state” his honorable discharge for the period of July 1969 to 1970, because he re-enlisted after suffering a second degree burn on his back. He was wronged by his unit, which was a unit that did not like Vietnam veterans. He went on temporary duty and got remarks. 3. Based on a review of applicant’s file, the Board has construed his request as pertaining to his 31 January 1973 discharge. 4. The applicant’s service record shows: a. He enlisted in the Regular Army on 29 July 1969 for a period of two years. b. While serving in Vietnam, he was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) honorably discharging him on 28 March 1970 for the purpose of immediate re-enlistment. c. On 29 March 1970, he re-enlisted for a period of three years. d. On September 26 1972, then serving at Fort Riley, Kansas, his company commander initiated separation action under the provisions of Army Regulation 635-212 due to the applicant’s continued absences (which resulted in six instances of non- judicial punishment and three summary courts-martial) and writing of bad checks. e. The chain of command recommended he receive an undesirable discharge. On 30 November 1972 applicant and counsel appeared before a board of officers which found him undesirable for further retention because of frequent incidents of a discreditable nature with civil and military authorities and habitual shirking. It also found that rehabilitation was not possible and recommended he be discharged because of unfitness with an undesirable discharge. f. On 10 January 1973, the separation authority directed he be discharged with an undesirable discharge. g. On 31 January 1973, the applicant was discharged under conditions other than honorable. h. On 4 December 1978, the applicant’s discharge was upgraded to under honorable conditions by action of the Department of Defense Discharge Review Program. i. On 3 December 1982, the applicant and counsel appeared before a travel panel of the Army Discharge Review Board (ADRB) convened in Cincinnati, Ohio. The ADRB did not further upgrade his discharge, but directed the narrative reason for separation be changed to misconduct—frequent incidents. 5. By regulation (AR 15-185), personal appearance before the Board may be granted as a matter of discretion. 6. By regulation (AR 635-212), individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. An undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge. 7. The Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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. He was discharged for misconduct and received an under other than honorable discharge; however, the ADRB later upgraded his character of service to under honorable conditions (General). The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. 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) 15-185 (Boards, Commissions, and Committees—ABCMR), prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR, though one may be granted by the Director. 3. AR 635-212 (Personnel Separations—Discharge—Unfitness and Unsuitability), in effect at the time, set forth the policy for administrative separation for unfitness. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge. 4. AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic policy for the separation of enlisted personnel. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member'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 general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 5. 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//