ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 June 2019 DOCKET NUMBER: AR20170013690 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions discharge * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * DD Form 258A (Undesirable Discharge Certificate) 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 after serving 11 months in Vietnam, his unit returned to Fort Dix, NJ, where they were supposed to have rest and recuperation. He wanted to go home to get married. His captain informed him that all of their leaves had been canceled. In his state of mind, he hit him and walked out. He was under a lot of stress at the time. Also, the amount of time loss on my DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) is inaccurate. He was picked up at 90 days and put into county jail. He has straighten his life out since this time. He is a husband of 32 years, a father of 9 children, a grandfather of 16 grandchildren, and 5 great grandchildren. He is a full time truck driver and owns a home. 3. A review of the applicant’s service record shows: a. He enlisted on 30 August 1965 in the Regular Army. b. He served in Vietnam for 11 months from 14 April 1966 until he was dropped from rolls on 29 April 1967. c. He accepted nonjudicial punishment under Article 15 on/for: * 24 February 1966, disobeying a lawful order from a noncommissioned officer * 25 February 1966, failing to go to this place of duty * 8 August 1966, disobeying a lawful order from a noncommissioned officer; as part of his punishment, he was reduced to private (PVT)/E-2 suspended for 60 days * 7 December 1966, absenting himself from his place of duty; he was reduced to PVT/E-2 * 7 September 1967, absenting himself from his place of duty d. On 25 March 1966, he was convicted by summary court-martial for one specification possessing an unauthorized military pass, one specification of breaking restriction, and two specifications of failing to go to his appointed place of duty. The sentence was approved and was duly executed. e. He was convicted by special courts-martial as outlined below. The sentences were approved and duly executed. * four specification of being absent without leave (AWOL), 13 March to 11 June 1967, 17 to 19 June 1967, 20 to 22 June 1967, 24 to 26 June 1967, and 11 October to 28 November 1967 * three specification of breaking restriction f. The complete facts and circumstances surrounding the applicant’s complete discharge are unavailable for the Board to review. The immediate commander’s intent to separate the applicant is missing from the applicant’s service records. g. On 14 March 1968, the applicant consulted with legal counsel regarding the basis for contemplated action to accomplish separation for unfitness under Army Regulation (AR) 635-212 (Personnel Separations – Discharge for Unfitness and Unsuitability) for unfitness. He acknowledge: * he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable condition is issued * he may be ineligible for many or all benefits as a veteran under both Federal and State laws in the event an undesirable discharge under conditions other than honorable conditions is issued * he may expect to encounter substantial prejudice in civilian life h. On 18 March 1968, his immediate commander initiated separation under the provisions of AR 635-212 for unfitness. i. On 18 March 1968, consistent with part of the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation. He would be discharged under the provisions of AR 635-212, by reason of unfitness, furnished an Undesirable Discharge Certificate, and reduced to the lowest enlisted grade. j. On 10 April 1968, he was discharged from active duty under the provisions of AR 635-212 and issued a under other than honorable conditions discharge. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) reflects that the completed 1 year, 9 months, and 25 days of active service with 268 days of lost time from the following dates: * 13 March 1967 to 10 June 1967 * 17 June 1967 to 18 June 1967 * 20 June 1967 to 21 June 1967 * 24 June 1967 to 25 June 1967 * 26 August 1967 to 27 August 1967 * 1 September 1967 to 4 September 1967 * 14 September 1967 to 18 September 1967 * 21 September 1967 to 21 September 1967 * 28 September 1967 to 28 September 1867 * 4 October 1967 to 8 October 1957 * 11 October 1967 to 9 April 1968 k. His DD Form 214 also shows that he was awarded or authorized: * Marksman Marksmanship Qualification Badge with Rifle Bar * Vietnam Service Medal with 1 Bronze Star * National Defense Service Medal * Vietnam Service Medal * Overseas Bar 4. By regulation (AR 15-185), an applicant is not entitled to a hearing before the Army Board for Correction of Military Records (ABCMR). Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 5. By regulation (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 his is not amenable to rehabilitation measures. 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: 1. 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 record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 2. 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. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 (Personnel Separations – Discharge for Unfitness and Unsuitability), in effect at the time, sets forth the basic policy, procedures, and guidance for eliminating enlisted personnel who are found to be unfit or unsuitable for further military service. 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 his is not amenable to rehabilitation measures. 3. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the general provisions and 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. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 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 the 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, 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 upgrade service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170013690 6 1