ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 July 2019 DOCKET NUMBER: AR20170015271 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to an 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. 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 AR20080012042 on 17 September 2008. 3. The applicant states he has tried over 42 years to get his discharge upgraded and he would like to try one more time before he leaves this earth. He was a proud Soldier and he loves his country. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 22 June 1973. b. He accepted nonjudicial punishment on/for: * 30 January 1974, for absenting himself from his appointed place of duty * 3 Aug 1974, for engaging in the purchase of goods for illegible transfer or production of income thru barter or exchange; his punishment included reduction to PVT/E-1 * 30 September 1974, for misconduct and a pattern of insubordination * 12 September 1975, for failure to report to your assigned duty * 16 October 1975 for disobeying a lawful order by a senior noncommissioned officer; his punishment included reduction to PVT/E-1 c. On 16 October 1975, his immediate commander notified the applicant of his intent to initiate action that may result in the applicant’s separation from the Army under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations), Chapter 13, paragraph 13-2. He recommended an Undesirable Discharge Certificate be issued. d. On 16 October 1975, the applicant consulted with legal counsel and was advised of the basis for the contemplated action to separate him for unfitness under AR 635-200, Chapter 13, paragraph 13-2, its effects, the rights available to him, and the effect of any action taken by him in waiving his rights. He elected not to submit statements in his own behalf. He acknowledged: * he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he understood that if he received a discharge certificate with a characterization of service which is less than honorable, he may apply to the Army Discharge Review Board of Army Board for Correction of Military Records for an upgrade * he would be ineligible to apply for enlistment in the Army or any of the other armed forces for a period of 2 years after discharge e. On 22 October 1975, his immediate commander initiated action to eliminate the applicant under the provisions of AR 635-200, Chapter 13, paragraph 13-2 for unfitness, inability to adapt to the military, and minor disciplinary infractions and recommended a undesirable discharge. The commander also listed specific incidents of misconduct within the action. f. On 12 November 1975, the separation authority approved the request for discharge and issued an Undesirable Discharge Certificate. g. He was discharged from active duty on 14 November 1975 with a under other than honorable conditions characterization of service. His DD Form 214 (Report of Separation from Active Duty) shows he completed 2 years, 4 months and 18 days of net active service. It also shows he was awarded or authorized the: * National Defense Service Medal * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) 5. By regulation, a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. The service of members separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record. 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 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, as well as the failure to accept responsibility and show remorse for the events leading to his separation, 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 to amend the decision of the ABCMR set forth in Docket Number AR20080012042 on 17 September 2008. 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 635-200 (Personnel Separations – Enlisted Separations), in effect at the time, sets forth the basic authority for the 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 member’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. Chapter 13 of that regulation provides a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. The service of members separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record. 3. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170015271 5 1