ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 July 2019 DOCKET NUMBER: AR20170016600 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge or Dismissal From the Armed Forces of the United States) 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 he served two and a half years and voluntarily took a 6 month early discharge with the promise he would receive a general under honorable conditions discharge. However, he received an under other than honorable conditions discharge. Also, he adds that due to a house fire, he is unable to provide supporting documents. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 30 April 1970. b. He accepted nonjudicial punishment, Uniform Code of Military Justice (UCMJ), Article 15 on 31 August 1970 for: * with the intent to deceive by signing an official statement known to be false * failed to go at a prescribed time to an appointed place of duty c. Special Court-Martial charges were preferred on 22 July 1971. His DD Form 458 (Charge Sheet) shows he was charged with one specification of committing an assault upon another Soldier, by striking him with a means likely to produce grievous bodily harm. The court sentenced him to hard labor with confinement for 6 months, reduction to the grade of E1 and forfeiture of $95 pay for 6 months. d. On 2 September 1971, all unexecuted portions of sentences to confinement at hard labor and forfeitures were remitted. e. He accepted nonjudicial punishment, Uniform Code of Military Justice (UCMJ), Article 15 on 16 June 1972 for being absent without leave from 5 June 1972 to 13 June 1972. He was reduced to the grade of E3. f. He accepted nonjudicial punishment, UCMJ, Article 15 on 12 July 1972 for failure to report to an assigned place of duty and for being absent without leave from 28 June 1972 to 10 July 1972. He received forfeiture of $70 pay and 14 days extra duty. g. He accepted nonjudicial punishment, UCMJ, Article 15 on 1 September 1972 for being absent without leave from 9 August 1972 to 29 August 1972. He received forfeiture of $80 pay and 14 days extra duty. h. The facts and circumstance pertaining to the applicant’s separation processing is not available for the Board to review. However, per Special Orders Number 290, dated 16 October 1972, the applicant was transferred for separation processing. He was issued an Under Conditions Other Than Honorable Certificate. i. He was discharged from active duty on 20 October 1972 under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge Unfitness and Unsuitability). His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 2 years, 2 months and 1 day of net service with110 days of lost time. 4. There is no evidence that the applicant applied to Army Discharge Review Board for an upgrade of his discharge. 5. By regulation, action will be taken to separate an individual when it is clearly established that despite reasonable attempts to rehabilitate or develop the individual as a satisfactory Soldier, further effort is unlikely to succeed. An Undesirable Discharge Certificate will normally be furnished to an individual who is discharged by reason of unfitness AR 635-212. 6. 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 not warranted. Based upon the short term of honorable service completed prior to a pattern of misconduct, which included violent behavior towards others, 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) 635-200, (Personnel Separations – Enlisted Personnel), in effect at the time, provides for separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states that 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 that 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. 3. Army Regulation 635-212 (Personnel Separations – Discharge Unfitness and Unsuitability), in effect at the time, establishes policy and provides procedures and guidance for the prompt elimination of enlisted personnel who are determined to be unfit for further military service. Action will be taken to separate individuals when it is clearly established that despite reasonable attempts to rehabilitate or develop the individual as a satisfactory Soldier, further effort is unlikely to succeed. An Undesirable Discharge Certificate will normally be furnished to an individual who is discharged by reason of unfitness. 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 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. ABCMR Record of Proceedings (cont) AR20170016600 4 1