ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 June 2019 DOCKET NUMBER: AR20170011827 APPLICANT REQUESTS: * upgrade under other than honorable conditions discharge to general * reinstated rank to specialist (SPC)/E-4 * pay all back pay and allowances APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement * DD Form 214 (Report of Separation from Active Duty) 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. When he came back from Vietnam in October 1972, he got married and was going to be stations at Yuma Proving Grounds, Yuma, AZ. His wife moved to Yuma with him and after 2 weeks she told him that she did not like it in AZ. She moved back to Vicksburg, MS. When he got out of the Army in October of 1973, his wife wanted to get back together, but it was over for them. b. When he went back into the Army in January 1975, he had been living with another woman and they just had their first child. When he got stationed at Fort Gordon, GA, she moved with him and they were living off base. In 1976, they were going to Vicksburg on a weekend pass when his motor went out in their car. His girlfriend and child went back to Augusta, GA and he went onto Vicksburg where he bought a 1974 Chevrolet pickup truck. c. When he joined the Army in 1975, he had to start sending his wife an allotment check, even though they were separated for over 2 years. He was trying to pay the rent, truck payment, and send an allotment check to his wife. It was just too much for his income at the time. He talked to his company commander and he told him that he could get out of the Army on chronic default and it would not hurt his discharge. It would be a general discharge, so that is what he did. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army (RA) on 4 November 1966. b. He received nonjudicial punishment (NJP) on 15 March 1967, failing to go at the time prescribed to his appointed place of duty and on 19 April 1967, theft of three rolls of coins; the property of another Soldier c. He served in Vietnam from 21 September 1967 to 16 September 1968 and Germany from16 April 1969 to 13 October 1969. He received NJP on 12 July 1968, for dereliction of duty; on 14 January 1969, failing to go at the time prescribed to his appointed place of duty; and on 24 February 1969, failing to obey a lawful order. d. He was honorably released from active duty in the rank/grade of SP4/E-4 on 22 October 1969 and assigned to the U.S. Army Reserve (USAR) Control Group (Reinforcement). His DD Form 214 shows he completed 2 years, 11 months, and 18 days of active service. e. He was discharged from the USAR Control Group (Reinforcement) on 25 October 1970 to enlist in the RA. He subsequently enlisted in the RA on 26 October 1970. He served in Korea from 9 January 1971 to 25 November 1971. f. He received NJP on 12 July 1971 for violating a lawful general regulation by selling a television set to a Korean national. His punishment consisted of reduction in grade to PFC/E-3 (suspended for 30 days). g. He served in Vietnam from 26 November 1971 to 16 August 1972. h. He was honorably discharged from active duty in the rank/grade of SP4/E-4 on 25 October 1973 for expiration term of service. His DD Form 214 shows he completed 5 years, 11 months, and 18 days of active service. i. He enlisted in the RA in the rank/grade of private first class (PFC)/E-3 on 8 January 1975. He was advanced to SP4/E-4 on 31 May 1975. j. He received NJP on 21 April 1976 for wrongfully appropriating tools, a value of $59.25 the property of the U.S. Government. His punishment consisted of reduction in grade to PFC/E-3 (suspended until 21 September 1976). k. On 24 September 1976, the applicant was notified by his commander that he was being recommended for discharge from the U.S. Army for misconduct under chapter 13, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations) l. On 27 September 1976, the applicant acknowledged receipt of the notification of his proposed discharge action. He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action. He acknowledged: * he was entitled to have his case heard before a board of officers * he was entitled to personally appear before a board of officer * he may submit statements in his behalf * he has the right to be represented by military or civilian counsel at his own expense * he may encounter substantial prejudice in civilian life * he may be ineligible for many or all benefits as a veteran under both Federal and State laws m. On 27 September 1976, the immediate commander initiated separation action against the applicant for misconduct. The commander stated that the elimination was recommended because of the applicant's excessive amount of debt and his failure to make any attempt to pay them off. n. On 28 September 1976, the intermediate commander recommended approval of the discharge action. o. On 19 October 1976, the separation authority approved the recommendation for separation under the provisions of Chapter 13, AR 635-200 and directed that the applicant be reduced to the lowest enlisted grade of (PVT)/E-1 and be furnished an undesirable discharged certificate. p. He was discharged from active duty on 22 October 1976 with an under other than honorable conditions characterization of service. His DD Form 214 shows that he completed 1 years, 9 months, and 15 days of active service. He was separated at the rank of private/E-1 under the provisions of paragraph 13-28, chapter 13, change 42, AR 635-200. It also shows he was awarded or authorized: * National Defense Service Medal * Vietnam Service Medal with one silver and two bronze service stars * Vietnam Campaign Medal * Overseas Service Ribbon (3rd Award) * Good Conduct Medal * Armed Forces Expeditionary Medal * Vietnam Cross of Gallantry with Palm 4. By regulation, AR 635-200 (Personnel Separations-Enlisted Separations), action will be taken only when an individual is under military control, except that an individual confined by civil authorities may be processed for discharge when his military record indicates that he would be processed for separation by reason of unfitness or unsuitability. An individual separated by reason of unfitness will be furnished an undesirable discharge certificate. When a member is to be discharged under other than honorable conditions, the convening authority will direct an immediate reduction to the lowest enlisted grade. 5. By regulation, AR 635-5 (Personnel Separations – Separations Documents), paragraph 2-7f (Grade and pay grade) states items 6a and b enter grade and pay grade at the time of separation. Item 7 (Date of rank), enter date of rank for grade shown in item 6a. Date will be recorded in order shown on DD Form 214, using all numerals. 6. In reaching it determination the Board can 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 large amount of indebtness which led to the discharge, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. The Board also agreed not to grant relief for a change in rank or backpay. 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, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 13 states action will be taken only when an individual is under military control, except that an individual confined by civil authorities may be processed for discharge when his military record indicated that he would be processed for separation by reason of unfitness or unsuitability. An individual separated by reason of unfitness will be furnished an undesirable discharge certificate b. Paragraph 1-9d (Honorable Discharge), 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 of the member’s age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks, he may be furnished an honorable discharge. c. Paragraph 1-9e (General Discharge), is a separation from the Army under honorable conditions of an individual whose military records is not sufficiently meritorious to warrant an honorable discharge. d. Paragraph 13-28 (Reduction in grade), when an individual is to be discharge as unfit and is issued an undesirable discharge, the convening authority will direct his immediate reduction to the lowest enlisted grade. 3. Army Regulation 635-5 (Personnel Separations – Separations Documents), paragraph 2-7f (Grade and pay grade) states items 6a and b enter grade and pay grade at the time of separation. Item 7 (Date of rank), enter date of rank for grade shown in item 6a. Date will be recorded in order shown on DD Form 214, using all numerals. 4. Department of Defense Military Pay and Allowances Entitlements Manual, Volume 7A: Military Pay Policy – Active Duty and Reserve Pay, paragraph F-2a(2), Approved Sentence Includes Reductions. If the pay grade of the member was reduced to a lower grade as a result of the court-martial sentence and the reduction has not been set aside, disapproved, or otherwise vacated, then pay and allowances accrued under this paragraph will be paid at the lower pay grade. 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. ABCMR Record of Proceedings (cont) AR20170011827 5 1