ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 7 October 2019 DOCKET NUMBER: AR20170013006 APPLICANT REQUESTS: reconsideration of upgrade of under other than honorable conditions discharge and personal appearance to the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States). FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC97-09516 on 28 January 1998, and Docket Number AC97-09516A on 9 June 1999. 2. The applicant states he joined the Army and did not work out for him he would just like to upgrade his discharge. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on October 10 1972 for a period of 3 years. He completed the required training and was awarded military occupational specialty 64C (Motor Transportation Operator). b. He served in Hawaii from 12 March 1973 to 8 August 1973. c. His DA Form 20 (Enlisted Qualification Record) and DA Form 2-1 (Personnel Qualification Record) shows: * absent without leave (AWOL) from 8 August 1973 to 29 October 1973 * confined from 30 October 1973 to 21 November 1973 * dropped from rolls (desertion) on 6 September 1973 * AWOL from 8 January 1974 to 9 January 1974 * returned to military control on 20 August 1974 * patient from 15 September 1974 to 22 October 1974 d. He received nonjudicial punishment for several infractions on/for: 1) 10 June 1973, fail to go at the time prescribed to his appointed place of duty for detail formation and guard mount duty on 7 June 1973. He requested to make a verbal appeal, on 20 June 1973, the appeal was denied. 2) 3 August 1973, fail to go from his appointed place of duty to the Headquarters Company Orderly Room on 20 July 1973, on 23 July 1973 in the morning and the afternoon. On 24 July 1973, fail to go to his appointed place of duty. His punishment consisted of reduction to private (PVT)/E-1. 3) 19 March 1974, absent without leave (AWOL) from 8 August 1973 to on or about 30 October 1973 in Schoefield Barracks, Hawaii, AWOL on or about 8 January 1974, to on or about 10 January 1974, in Fort Dix, NJ. 4) 2 January 1975, willfully disobey a lawful order from his superior noncommissioned officer to put on his uniform and report to duty on 26-27 December 1974. He requested an appeal and his appeal was denied on 21 January 1975. 5) 12 March 1975, fail to go to his appointed place of duty on 19 January 1975, in Fort Rucker, AL. He requested an appeal and his appeal was denied on 2 April 1975. 6) 6 May 1975, was found sleeping on duty as it was his duty to be in the motor pool on 18 April 1975, in Fort Rucker, AL. e. On 15 May 1975, the applicant’s unit commander recommended a discharge, under the provisions of paragraph 13-5, AR 635-200 (Personnel Separations – Enlisted Personnel) for unfitness (misconduct, frequent incidents of a discreditable nature with civil and military authorities, drug offense and shirking.) Applicant had received punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ). On at least two occasions applicant stated he wanted out of the Army. He was referred to Alcohol/Drug Abuse Program (ASAP) on 17 December 1974. In several doctor notes the opinion was that he was malingering and exhibited a poor attitude and was rude to the doctor and other medical personnel. f. On 15 May 1975, the applicant consulted with legal counsel and was advised of the basis for his contemplated separation and its effects, the rights available to him and the effect of a waiver or his rights. He acknowledged receipt of the proposed separation: * he requested consideration by a board of officers (see Notification to Appear Before a Board of Officers and Summary of Proceedings in Packet) * he did not submit a statement on his behalf * he requested representation by a military counsel * he understood that he may expect to encounter substantial prejudice in civilian life if a general, discharge under honorable conditions was issued to him * he further understood that, as the 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 g. On 20 May 1975, the intermediate commander subsequently reviewed the proposed discharge action and recommended approval of the separation action and waived further rehabilitative efforts. h. On 18 July 1975, the applicant received notification of the board of officers convening on 5 August 1975 at Fort Rucker, AL. The board carefully considered the evidence and found that the applicant did have frequent incidents of discreditable nature with civil and military authorities and that there were numerous accounts of drug abuses or offenses and there was an established pattern for shirking in the military. They recommended the applicant be separated for reasons of unfitness and be issued an Undesirable Discharge Certificate. i. Special Orders Number 166, issued by the Headquarters, United States Army Aviation Center and Fort Rucker dated 26 August 1975, shows he was discharged under other than honorable conditions. j. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged in accordance with chapter 13-5a(1) of AR 635-200 (Personnel Separations –Enlisted Personnel) due to unfitness with an under other than honorable conditions characterization of service. His DD Form 214 shows he completed 2 years, 6 months, and 28 days of active service with 108 days lost. It also shows he was awarded or authorized the National Defense Service Medal. k. On 10 September 2015, the Army Board for Correction of Military Records (ABCMR) informed the applicant that his case had previously been reconsidered on 28 January 1998, and several other occasions, the ABCMR stated his request to change the character of service was not eligible for further consideration by the Board and his request was returned without action (see other letters and Memo of Consideration on previous requests in packet). 4. By regulation (AR 635-200), paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 5. 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: 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. Based upon the short term of honorable service completed prior to a pattern of misconduct which inluced a lengthy period of AWOL, 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set 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 is conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e (General discharge) states that a general discharge is a separation from the Army under honorable conditions. It is issued to a member 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. Chapter 13 of the regulation in effect at the time provided for separation for unfitness or unsuitability. An individual is subject to separation under the provisions of Paragraph 13-5(a) when one or more of the following conditions exist: * unfitness, frequent incidents of a discreditable nature with civil or military authorities * sexual perversion, including but not limited to lewd and lascivious acts, indecent exposure, and indecent acts with or assault upon a child * other indecent acts or offenses * drug abuse * established pattern of shirking * established pattern showing dishonorable failure to pay just debts * established pattern showing dishonorable failure to contribute adequate support to dependents * homosexual acts 2. 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) AR20170013006 2 1