ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  11 September 2019

	DOCKET NUMBER:  AR20170010242


APPLICANT REQUESTS:  

* a copy of the proceedings that upgraded his discharge to honorable
* change to his narrative reason for discharge
* restoration of his rank
* recoupment of his back pay and allowances
* correction of his DD Form 214 (Report of Separation from Active Duty)

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 his discharge was upgraded from a hearing.  He is requesting a copy of the records from that hearing.  He also states the Army Discharge Review Board (ADRB) was 100 percent in favor of a discharge upgrade.  He was found to be absent from a unit that did not exist, court-martialed and reduced in rank.  After the upgrade, his rank wasn’t restored nor did he recoup any pay and allowances.  The ADRB findings will support his case as it supported his discharge upgrade to honorable.

3.  The applicant’s service records shows:

	a.  He enlisted in the Regular Army on 26 January 1972.

	b.  His highest rank/grade attained was private first class/(E-3) on 1 May 1973.

	b.  He served in Germany from 18 June 1972 to 25 October 1973.  He did not received tour completion credit.

	c.  On 20 January 1975, the applicant was given a psychiatric evaluation.  The examiner determined the applicant was capable of distinguishing right from wrong.  He is responsible for his actions and possesses the mental and emotional capacity to understand and participate in board and other legal proceedings.  He was cleared for administrative action.  The examiner further noted the applicant has a history of inadequate behavior and some antisocial activities.  His present, confusing situation is causing considerable stress but the applicant was presently maintaining emotional control.

	d.  On 24 January 1975, court-martial charges were preferred against the applicant.  His DD Form 458 (Charge Sheet) indicates he was charged with one specification of AWOL from on or about 27 October 1973 to 15 March 1974.

	e.  On 30 January 1975, the court sentenced him to reduction to private/(E-1), forfeiture of $175.00 pay per month for one (1) month, and restriction to the limits of the unit of assignment for forty-five (45) days.

	f.  On or about 30 January 1975, the applicant’s immediate commander initiated action to separate him under the provisions of chapter 13, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for unsuitability.  The commander based his recommendation upon the applicant’s psychiatric evaluation, his defective attitudes, and inability to expend effort in a constructive manner.  The applicant also acknowledged receipt of the notification.

	g.  On or about 30 January 1975, he was advised by counsel of the basis for the contemplated action to accomplish his separation for unsuitability under the provisions (UP) of chapter 13, AR 635-200, and its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights.  He acknowledged he:

* may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* waived consideration of his case by a board of officers
* waived his appearance before a board of officers
* elected not to submit a statement in his own behalf 
* understood that he may, up until the date the discharge authority directs or approves his discharge, withdraw his waiver and request that a board of officers hear his case.

	h.  On 5 February 1975, the separation approval authority approved the applicant’s discharge for unsuitability under provisions of chapter 13, AR 635-200.  He was issued a General Discharge Certificate.

	i.  On 7 February 1975, the applicant was discharged as a result of the elimination proceedings in accordance with chapter 13, AR 635-200, with an under honorable conditions characterization of service.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 9 months, and 28 days of active service with 441 days of lost time.  He was awarded or authorized:

* National Defense Service Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar (M16)

	j.  On 26 October 1977, the Army Discharge Review Board (ADRB) reviewed the applicant’s discharge processing.  The Board found that he was not properly discharged initially nor equitably discharged.  The applicant was granted relief based on current policy.  The ADRB upgraded his characterization of service to honorable under the provisions of AR 635-200.

	k.  On 13 December 1984, a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) was issued.  The DD Form 215 corrected the original DD Form 214 as follows:

* Item Number 10:  RE-3, RE-3B, RE-3C
* Item Number 27:  Deleted – Appendix C, AR 601-210 applies
			  Added – Table 4-1, AR 601-210 applies

4.  By regulation:

	a.  AR 635-200 states action will be taken to separate a Soldier for unsuitability when it is clear he will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.

	b.  AR 635-5-1 states individuals involuntarily discharged under the provisions of paragraph 13-5b(2), AR 635-200 are issued separation program designator – JMB, (Unsuitability-traits of character or behavior disorder).

	c.  AR 600-8-19 states the appeals of reduction for inefficiency or for misconduct under table 10-2, other than rule 1 are authorized to correct an erroneous reduction on equitable grounds.  This will be based on facts and circumstances of the particular case that partial or full restoration of rank is in the best interest of the Army and the Soldier.

	d.  AR 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214 and DD Form 215.  In pertinent part, it states the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  Once a DD Form 214 has been issued, do not reissue, except when two DD Forms 215 have been issued and an additional correction is required.
5.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

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, the Board determined relief was not warranted.  The applicant’s contentions were carefully considered.  Evidence of record shows the Personnel Control Facility (PCF), Fort Leonard Wood, MO, charged him under the UCMJ for being AWOL.  It is consistent that PCFs charge members for lengthy periods of AWOL after they are dropped from the rolls of the Army, upon being returned to military control.  His record clearly shows he was assigned to the PCF when discharged.  The Board agreed the ADRB’s decision to provide clemency by upgrading his initial discharge characterization had no effect on the AWOL status listed in his record, nor the reduction in rank.

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 635-200 (Personnel Separations-Enlisted Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-9d (Honorable) provides 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 for the member’s age, length of service, grade, and general aptitude.

	b.  Paragraph 1-9e (General) states that 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.

	c.  Paragraph 13.  This chapter establishes policy and provides procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.

3.  Army Regulation 635-5 (Separation Documents), then in effect, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for preparation of the DD Form 214

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)	 AR20170010242


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