ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 August 2019 DOCKET NUMBER: AR20170011876 APPLICANT REQUESTS: an upgrade of his other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) * Letter from Senator Tim Scott * Privacy Act Release Form * DD Form 214 (Armed Forces of the United State Report of Transfer or Discharge) * Separation Packet 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 feels he was given this discharge unfairly and he request an upgrade so that he can apply for veteran benefits. 3. The applicant provides: a. A letter from Senator X acknowledging the applicant’s request for assistance and providing him with a privacy act statement. b. A privacy act release form which the applicant sent to the Senator’s office. c. A letter from Senator X--- on behalf of the applicant, requesting that his discharge be reviewed.. d. DD Form 214, which shows he was discharged on 28 June 1970. e. A copy of his separation packet outlining the details of his discharge. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 1 April 1968. b. He served in Vietnam. c. He accepted non-judicial punishment (NJP) on 23 July 1968 for absenting himself from his unit on or about 20 July 1968. d. He was convicted by special court-martial on 9 May 1969 for absenting himself from his organization on or about 27 March 1969 to 22 April 1969. He was reduced in grade from Specialist Four (E-4) to Private (E-2). e. He was convicted by special court-martial on 23 March 1970. He was sentenced to be confined at hard labor for five months, forfeiture of $75.00 per month for six months and to be reduced to the lowest enlisted grade of Private/ E-1. He was charged with: * one specification of willfully disobeying a lawful command from his superior commissioned officer on or about 29 January 1970. * one specification of pushing and shoving his commissioned officer, also pushing and shoving his non-commissioned officer on or about 29 January 1970. * one specification of having in his possession 60 Binoctal tablets on or about 29 January 1970. * one specification of being drunk and disorderly on or about 12 January 1970. * one specification of absenting himself from his unit on or about 4 January 1970 to 7 January 1970. f. On 6 April 1970, the applicant’s immediate commander notified him of his intent to separate him under the provisions of Army Regulation (AR) 635-212 (Personnel Separations Discharge Unfitness and Unsuitability), in effect at the time for unfitness, due to his past military history of commissions of court-martial offenses. g. On 8 April 1970, the applicant had a psychiatric evaluation and it was determined that he was mentally responsible, able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and participate in board proceedings. h. On 9 April 1970, the applicant was advised by counsel of the basis for the separation action for unfitness under AR 635-212. He elected not to make statements on his own behalf, but requested: * consideration of his case by a board of officers * personal appearance before the board of officers * representation by counsel i. He also understood: * he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued * as a result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws * he may expect to encounter substantial prejudice in civilian life j. On 29 April 1970, the applicant’s immediate commander recommended that the applicant be required to appear before a board of officers for the purpose of determining whether he should be discharged before the expiration of his term of service for reasons of unfitness. k. On 28 May 1970, the board of officers was convened for the purpose of determining whether the applicant should be discharged before the expiration of his term of service for reasons of unfitness. l. After the President of the board announced the board’s recommendation and the board had been closed, the counsel for the applicant discovered that the applicant’s record of trial that had been referred to and read from during the hearing, had been left in the courtroom while the board, in its closed session had been deciding on their recommendation. Counsel further discovered that the record of trial was reviewed by one or more of the members in deciding its recommendation. The record was never entered in evidence as an exhibit. The President of the board noted the objection. * the board decided that the applicant was undesirable for further retention in the military services because of habits and traits of character manifested by repeated commission of petty offenses. * the board recommended that the applicant be discharged from the service with issuance of an undesirable discharge certificate. m. On 11 June 1970, the applicant’s counsel wrote a letter to the commanding general stating he felt the applicant had been prejudiced by the examination and consideration of the record of trial. n. On 22 June 1970, the separation authority approved the discharge under the provisions of AR 635-212 and directed he be furnished an Undesirable Discharge Certificate. o. He was discharged from active duty on 28 June 1970, in accordance with AR 635-212, with an under other than honorable conditions character of service. His DD Form 214 shows he completed 1 year, 8 months and 13 days of net active service with lost times from 27 March 1969 to 21 April 1969, 22 April 1969 to 29 April 1969 and 4 January 1970 to 10 January 1970. 5. On 21 May 1979, the Army Discharge Review Board (ADRB) reviewed the applicant’s discharge processing, but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 6. By regulation (AR) (635-212), 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. 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: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions and letter of support was 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 evidence of post-service achievements for the Board to consider. Based upon the pattern of misconduct, which included offenses of a violent nature towards others, 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, then in effect, set forth the policy for administrative separation for unfitness. Paragraph 6 of the regulation provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts. This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge. 3. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, 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 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. c. Paragraph-1-9f (Undesirable Discharge) states an undesirable discharge is an administrative separation from the Service under conditions other than honorable. It may be issued for unfitness, misconduct, or for security reasons. d. AR 635-212, paragraph 3, 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; or rehabilitation is impracticable or he is not amenable to rehabilitation measures. 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 (BCMNRs) 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 court-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 on the basis of 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. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170011876 5 1