ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20170017827 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. 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 Chief Warrant Officer Two XXX, Assistant Adjutant, informed him during his discharge in 1969 that if he came back in for 6 months, his discharge would be changed to honorable. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 2 November 1966. b. The applicant received numerous DA Form 2627-1s (Record of Proceedings under Article 15, Uniform Code of Military Justice) (non-judicial punishment (NJP)) and a special court martial as follows: * NJP, dated 27 February 1967, off post without a pass, forfeiture of $20 * NJP, dated 30 August 1967, absent without leave, reduced to private/E2, restriction and extra duty for 45 days * NJP, dated 13 May 1968, incapacitated for duty, reduction to private/E2 (suspended for 30 days), forfeiture of $25 and extra duty for 7 days * NJP, dated 18 June 1968, violated lawful order of company commander, reduction to private/E2 (suspended for 30 days), forfeiture of $26, and extra duty for 14 days * NJP, dated 13 July 1968, failed to go to place of duty, reduced to private/E2, forfeiture of $26, restriction and extra duty for 14 days * NJP, dated 26 July 1968, failed to go to place of duty, reduced to private/E1, forfeiture of $25, restriction and extra duty for 14 days * Special court martial, dated 3 September 1968, sleeping on guard, sentenced to 3 months confinement hard labor (suspended), and forfeiture of $50 for 3 months * NJP 15, dated 6 October 1968, absent from unit on 4 October 1968, forfeiture of $27 * NJP, dated 4 November 1968, absent from unit from 2000hrs to 2230hrs and drunk in company area on 30 October 1968, forfeiture of $14 (suspended for 30 days), restriction and extra duty for 14 days c. He served in Vietnam from 25 January 1968 to 20 January 1969. d. On 8 December 1968, the applicant's immediate commander recommended him for a bar from enlistment/reenlistment based on a record of habitual misconduct evidenced by the Article 15s and the special court martial listed above. e. On 8 December 1968, he acknowledged that he read and understood the allegations for the bar from enlistment/reenlistment. He elected not to submit a statement. f. On 23 December 1968, consistent with the chain of command’s recommendations, the appropriate authority approved the bar. g. On 5 June 1969, the applicant was given a psychiatric evaluation. The examiner determined he had the mental capacity to understand and participate in proceedings, and was mentally responsible. He was psychiatrically cleared for any action deemed appropriate by his command. h. Report of offense, the applicant was confined by civil authorities from 5 July to 14 August 1969 for contributing to the delinquency of a minor. i. On 10 July 1969, the applicant's immediate commander notified the applicant of his intent to initiate action to discharge him from the Army under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) by reason of unfitness. He advised the applicant of his rights. j. On 10 July 1969, the applicant acknowledged he had been notified of the pending separation action against him and he had been advised by counsel of the basis for the contemplated action to separate him for unfitness. He requested consideration of his case by a board of officers and a personal appearance before a board of officers. He did not submit a statement on his own behalf. He acknowledged that: * he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he understood that in the event of the issuance of an undesirable discharge, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he may encounter substantial prejudice in civilian life k. On 10 August 1969, the applicant's immediate commander initiated action to separate him from the Army under the provisions of AR 635-212 due to unfitness. The commander listed the applicant's extensive history of misconduct and disregard for authority, counseling dates, court-martial conviction, Article 15s, bar to reenlistment, and confinement. He recommended the applicant be separated from the service with an undesirable discharge, prior to his expiration of term of service. l. On 10 September 1969, the intermediate commander recommended approval. In addition, supplied the following: lost time under Section 972, Title 10, U.S. Code, as recorded in Item 44 of the applicant’s DA Form 20. m. On 15 September 1969, the senior commander recommended approval for the separation. n. On 3 October 1969, the intermediate commander requested thru the senior commander, a waiver for the rehabilitative reassignment required in accordance with (IAW) AR 635-212, paragraph 7b (2). The senior commander recommended approval. o. On 15 October 1969, the applicant acknowledged he had been notified of the pending separation action against him and he had been advised by counsel of the basis for the contemplated action to separate him for unfitness. He requested consideration of his case by a board of officers and a personal appearance before a board of officers. He did not submit a statement on his own behalf. He acknowledged that: * he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he understood that in the event of the issuance of an undesirable discharge, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he may encounter substantial prejudice in civilian life p. On 30 October 1969, a board of officers convened at Homestead Air Force Base, FL to determine if the applicant should be separated or retained. The board of officers found the applicant undesirable for further retention in the military service because of habits and traits of character manifested by repeated commission of petty offenses and rehabilitation is not deemed possible. The board recommended that he be discharged from the service because of unfitness and issued an Undesirable Discharge Certificate. q. On 19 November 1969, the separation authority approved the discharge action under the provisions of AR 635-212 for unfitness with the issuance of an Undesirable Discharge Certificate. In addition, reduction to the lowest enlisted pay grade IAW AR 600-200 (Enlisted Personnel Management System), paragraph 7-30b (3). r. He was discharged from active duty on 19 November 1969. He was discharged under the provisions of AR 635-212 by reason of unfitness with separation program number 28B (unfitness). As recorded on his DD Form 214 in item 15 (Reenlistment Code) shows reentry code 4, which precludes reentry into the Army. His character of service was under conditions other than honorable. He completed 3 years with 18 days of lost time. His DD Form 214 shows he was awarded or authorized: * National Defense Service Medal * Vietnam Service Medal * Vietnam Campaign Medal * two overseas service bars * Sharpshooter Marksmanship Qualification Badge (Rifle) 4. By regulation (AR 635-212), individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. An undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge. 5. In reaching its determination, the Board can consider the applicant’s petition and his service record IAW 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 request, the Board determined that relief was warranted. Based upon the type of misconduct, the punishment already completed as a result of that punishment, as well as the passage of time, the Board concluded that granting clemency by upgrading the characterization of service of the applicant 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. 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, set forth the policy for administrative separation for unfitness. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge. 3. AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic policy for the separation of enlisted personnel. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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. 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. 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) AR20170000830 6 1