ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 April 2019 DOCKET NUMBER: AR20170013939 APPLICANT REQUESTS: Reconsideration of his earlier request for: * an upgrade of his under other than honorable conditions discharge * as a new issue, a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 AC97-10380 on 24 June 1998. 2. The applicant states he was hospitalized during the movement from his unit at the time and was considered to be absent without leave (AWOL). He was told to go to the airbase to catch a flight and was quickly court-martialed and told that his kind was not needed in the military. He was young and did not understand that this would follow him for the rest of his life. His life was turned upside down when white men called him the “N” word. He felt the need to fight being young and Dr. Martin Luther King had just been assassinated. He never received a copy of his discharge papers and while he was watching television, he decided he needed to do something about his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 3. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 29 June 1965. b. On 22 September 1966, he was convicted by special court-martial of one specification of being AWOL from 30 April 1966 to 24 August 1966. The court sentenced him to confinement at hard labor for 5 months, forfeiture of $25 pay per month for 5 months, and to reduction to the lowest enlisted grade. The convening authority approved the sentence on 23 September 1966. c. On 17 January 1967, he was convicted by summary court-martial of on specification of wrongfully using provoking words. The court sentenced him to forfeiture of $25. The convening authority approved the sentence. d. He served in Vietnam from 17 April 1967 to 14 September 1968. e. On 8 May 1968, he was convicted by special court-martial of one specification of AWOL from 22 October 1967 to 21 March 1968 and one specification of wrongfully impersonated a noncommissioned officer. The court sentenced him to confinement at hard labor for 6 months and forfeiture of $64 pay per month for 6 months. The convening authority approved the sentence on 9 May 1968. f. On 12 May 1968, the applicant’s immediate commander notified the applicant he was considered the applicant for elimination from military service for unfitness, under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). He advised the applicant of his rights. g. On 20 May 1968, having been advised by counsel, the applicant acknowledged the basis for contemplated action to separate him for unfitness under AR 635-212. He waived consideration of his case by a board of officers and a personal appearance before a board of officers. He elected not to submit statements in his own behalf and waived representation by counsel. He acknowledged that: * he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him * he understood that, as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for all benefits as a veteran under both Federal and State laws and he may expect to encounter substantial prejudice in civilian life h. On 20 May 1968, his immediate commander initiated action to separate the applicant from the Army under the provisions of AR 635-212. The discharge was recommended because of habits and traits of character manifested by repeated commissions of AWOL offenses and habitual shirking. The chain of command recommended approval. i. On 22 June 1968, the separation authority approved the discharge under the provisions of AR 635-212 with the issuance of an Undesirable Discharge Certificate. j. The applicant was discharged from the Army on 9 July 1968. His DD Form 214 shows he was discharged by reason of AR 635-212. He was assigned Separation Program Number 28B (Unfitness) and his characterization of service was under conditions other than honorable. He completed 1 year, 10 months, and 15 days of active service with 421 days of lost time. 4. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his character of service. After considering the evidence, the ADRB denied his request. 5. By regulation, action will be taken to separation 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. An individual separated by reason of unfitness will be furnished an Undesirable Discharge Certificate. 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted. Based upon the age of the applicant at the time of the misconduct, the type of misconduct itself and the passage of time, the Board concluded that granting clemency by upgrading the characterization of service to Under Honorable Conditions (General) was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 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 (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), in effect at the time, set forth the policy for administrative separations for unfitness. a. Paragraph 3 (Policy) 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 * Rehabilitation is impracticable (as in cases of confirmed drug addiction) or he is not amenable to rehabilitation measures (as indicated by the medical and/or personal history record) * An unfitting medical condition is not the direct or substantial contributing cause of his unfitness b. Paragraph 4 (Types of Separation) states an individual separated by reason of unfitness will be furnished an Undesirable Discharge Certificate except that an honorable or general discharge certificate may be awarded if the individual being discharged has been awarded a personal decoration or if warranted by the particular circumstances in a given case. 2. AR 635-200 (Active Duty Enlisted Separations), currently in effect, sets forth the basic policy for separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) states ABCMR members will review all applications that are properly before them to determine the existence of an error. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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. 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 (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) AR20170013939 4 1