ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  18 June 2019

	DOCKET NUMBER:  AR20170011473


APPLICANT REQUESTS:  an upgrade of his under honorable conditions discharge 

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

a.  He enlisted in the Regular Army on 15 January 1971.

b.  He accepted nonjudicial punishment on/for:

* 12 July 1972 for being Absent Without Leave (AWOL) his punishment included forfeiture of $39.00 for one month, 14 days extra duty, and reduced to E-3 (suspended for 90 days) 
* 16 October 1972 for AWOL his punishment included forfeiture of $34.00 for one month, 7 days extra duty
* 15 February 1973 for AWOL his punishment included reduction to E-2, and 30 days extra duty 
* 19 April 1973 for AWOL his punishment included 14 days extra duty and 14 days restriction
* 21 September 1973 for AWOL his punishment included 45 days extra duty and 45 days restriction

c.  On 1 October 1973, 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 unfitness.

d.  On 3 October 1973, he was advised by counsel of the basis for the contemplated 
action to accomplish his separation for unfitness 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 can request his case to be considered by a board of officers
* and requested a personal appearance before a board of officers
* he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* he waived to submit a statement in his own behalf 

e.  On 1 November 1973, the applicant received notification to appear before the 
Board of Officers on 19 November 1973, to determine whether he would be discharged because of unfitness before the expiration of his term of service.

f.  On 19 November 1973, the Board of Officers found/recommended the following: 

* he was undesirable for further retention in the military service because of habits and traits of character manifested by repeated commission of petty offenses
* he was undesirable for further retention in the military service because of repeated minor violation which resulted in habitual shirking
* his rehabilitation was not deemed possible
* recommended that he be discharged immediately with issuance of a General Discharge Certificate

g.  The separation authority approved the board findings and recommendations. 
The applicant would be discharged immediately with issuance of a General Discharge Certificate 

h.  The applicant was discharged on 14 December 1973 as a result of the 
Board of Officers report of proceedings in accordance with chapter 13, AR 635-200, with an under honorable conditions characterization of service.  

     i.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 
2 years, 10 months, and 8 days of active service with 22 days of lost time.  He was awarded or authorized the National Defense Service Medal, Vietnam Service Medal and the Republic of Vietnam Campaign Medal with 60 Device.

3.  By regulation, 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 and he meets retention medical standards (AR 40-501).

4.  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.

5.  In accordance with AR 635-200 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 or rehabilitation is impracticable or he is not amenable to rehabilitation measures (as indicated by the medical and/or personal history record. 

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 there is insufficient evidence to grant relief.  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 relatively short term of service and 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 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 Personnel), sets forth the basic authority for the separation of enlisted personnel.  

   a.  Paragraph 1-9d (Honorable Discharge) states 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) 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, in effect at that time, says that 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 or rehabilitation is impracticable or he is not amenable to rehabilitation measures (as indicated by the medical and/or personal history record.

	d.  Paragraph 13-5a covers unfitness which is frequent incidents of discreditable nature with civil or military authorities.

3.  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.


ABCMR Record of Proceedings (cont)	 AR20170011473


4


1