ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 July 2019 DOCKET NUMBER: AR20170015069 APPLICANT REQUESTS: an upgrade from under other than honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 that he requests that his DD Form 214 be changed from under other than honorable conditions to honorable due to the service of his country under a Vietnam tour of duty. He protests his discharge because he had no knowledge of the conditions of discharge and he served 5 years and 9 months with most of them being honorable. He feels that he deserves his record to be corrected to read honorable. He asks that his request be expedited and given the proper change for the service he gave to this country. 3. A review of the applicant’s active duty service record shows the following: a. He was in inducted in the Regular Army (RA) on 28 September 1966. b. He was honorably discharged for enlistment in the RA on 5 October 1966 as reflected on Special Orders Number 209 dated 5 October 1966.. c. His DD Form 214, shows the applicant was discharged from active duty on 4 April 1968 with an honorable discharge. He reenlisted in the RA on 5 April 1968. d. He served in Vietnam from 29 January 1970 to 30 December 1970. e. He accepted nonjudicial punishment on/for: * 28 March 1967 for failure to be at his appointed place of duty * 12 April 1967 for failure to be at his appointed place of duty and his punishment included reduction to the grade of private/E-1 * 18 October 1967 for being absent without leave (AWOL) from 16 August 1967 to 25 September 1967 * 21 July 1970 for disobeying a lawful order allowing no Vietnamese prostitutes into the billets f. A Record of Counseling (no date provided) by the interview officer, states the applicant has 197 days of lost time and he continuously misses bed-check even after repeated warnings that such action would lead to confinement in the stockade or discharge actions. It further states, that he has set a very bad example in the unit by several bad check episodes and that his attitude is not benefitting an effective member of the U.S Army. He also states that continued undisciplined behavior will lead to discharge and a general discharge will lead to civilian prejudice. Also that an undesirable discharge would make him ineligible for many or all benefits as a veteran under Federal and State Laws and that only about 6% of undesirable and general discharges get characterized to better discharges each year. The applicant acknowledged receipt of this counseling. g. A Record of Counseling, dated 8 October 1971, states that the applicant’s executive officer counseled him on writing a bad check for $15 on a closed bank account and that he has previously been counseled concerning bad checks in September of 1971. The applicant acknowledge receipt of this counseling. h. A Record of Counseling, dated 18 October 1971, states that the applicant’s first sergeant counseled him on missing bed check on the 17 October 1971 and that he had been warned before that continued bed check absence would lead to disciplinary or separation actions. The applicant acknowledged the counseling. i. On 19 October 1971, the applicant received notification from his immediate commander that he was being recommended for separation from the United States Army because of unfitness under the provisions of paragraph 6a(1), AR 625-212 (Personnel Separations – Unsuitability and Unfitness), with the issuance of an Undesirable Discharge Certificate. The applicant acknowledged on 20 October 1971 that he has the right to: * Present his case before a board of officers * Submit statements on his own behalf * Be represented by appointed counsel, military counsel or civilian counsel * Waive the above rights in writing * Have not less than 48 hours to consider his rights with the opportunity to consult with counsel. * j. On 19 October 1971, the applicant’s chain of command recommended discharge from the service and the issuance of a Undesirable Discharge Certificate under the provisions of paragraph 6a(1), AR 625-212 for unfitness. The reason for this action is due to a pattern of discreditable incidents with authority. The applicant had amassed 197 days of lost time since his last enlistment in a series of 10 absence without leave with the acceptance of NJP’s. Since his arrival at the Personnel Control Facility, the applicant’s behavior has required repeated reprimands and counseling where he habitually misses bed-check and passed bad checks on several occasions. It further states that his behavior is unfitting a member of the United States Army. k. On 20 October 1971, the applicant consulted counsel and was advised of the basis for contemplated action to accomplish separation for unfitness. He waived his: * Consideration on his case by a board of officers * Personal appearance before a board of officers * Statements on his own behalf were not submitted * Representation by appointed counsel * Understood that he may encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued * Understood that he may up until the date the discharge authority directs or approves his discharge, withdraw this waiver and request a board of officers hear his case l. An undated and unsigned memorandum from the separation authority shows approval for elimination from the service under the provisions of AR 625-212 with reduction to the lowest enlisted rank prior to discharge with the issuance of an Undesirable Discharge Certificate. m. He was discharged from active duty on 5 November 1971. His DD Form 214 show he was discharged under the under the provisions of AR 635-212 with an under other than honorable conditions discharge. 4. The applicant’s record is void of evidence that shows he applied for a discharge upgrade with the Army Discharge Review Board within 15 years of the separation. 5. By regulation, AR 635-212 states that an individual is subject to separation when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort is unlikely to succeed. 6. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment. 7. In reaching its determination, the Board can consider the applicants’ petition in his service record in accordance with 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 not warranted. Based upon the pattern of misconduct, the large amount of lost time in the record, and a lack of demonstrated acceptance of responsibility for the misconduct from the applicant, the Board concluded that the characterization of service received at the time of separation was appropriate. 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. (Personnel Separations- Discharge Unfitness and Unsuitability) in effect at the time, sets forth basic authority for the separation of enlisted personnel. An individual is subject to separation when it is clearly established that: a. Despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort is unlikely to succeed. b. Rehabilitation is impracticable (as in cases of confirmed drug addiction) or he is not amendable to rehabilitation measures (as indicated by medical and/or personal history record; c. An unfitting medical condition (AR 40-501) is not the direct or substantial contributing cause of his unfitness (para 9b). 3. AR 635-200 (Active Duty Enlisted Separations) currently in effect, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9f (Issuance of an undesirable discharge) states an undesirable discharge is an administrative separation from the service under conditions other than honorable. b. 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. c. Paragraph 3-7b (General Discharge) states A general discharge is a separation from the Army under honorable conditions. 4. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment. 5. DOD guidance, 25 July 2018, subject: Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity. Injustice, or Clemency Determinations, provides standards for Discharge Review Boards (DRBs) and Boards for Correction of Military /Naval Records (BCM/NRs) in determining whether relief is warranted on the basis of equity, injustice, or clemency. It states, in pertinent part: a. While not everyone should be pardoned, forgiven, or upgraded, in some cases, fairness dictates that relief should be granted. The Boards are trusted to apply this guidance and give appropriate consideration to every application for relief. b. This guidance does not mandate relief, but rather provides standards and principles to guide DRBs and BCM/NRs in application of their equitable relief authority. Each case will be assessed on its own merits. The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each board. c. Relief is generally more appropriate for nonviolent offenses than for violent offenses. d. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, DRBs and BCM/NRs should also consider, among other matters: • An applicant's candor • Severity of misconduct • Length of time since misconduct • Acceptance of responsibility, remorse, or atonement for misconduct • The degree to which the requested relief is necessary for the applicant • Character and reputation of applicant • Meritorious service in government or other endeavors • Evidence of rehabilitation • Availability of other remedies • Job history • Whether misconduct may have been youthful indiscretion • Character references ABCMR Record of Proceedings (cont) AR20170015069 0 4 1