IN THE CASE OF: BOARD DATE: 24 July 2020 DOCKET NUMBER: AR20170018313 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 31 October 2017 * DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), for the periods ending 5 March 1970 and 1 February 1973 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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: a. His assigned attorney at the time told him that he had too much good time and if he wanted to make a point about his wife and son not being able to come to Germany with him, he had to go absent without leave (AWOL) for at least 45 days. b. He reenlisted because he had been a good Soldier from his initial enlistment to his first discharge. He served at different duty stations, including Vietnam, a temporary duty funeral detail stateside, and Fort Meade, MD. 3. The applicant enlisted in the Regular Army on 6 March 1967. He was honorably discharged on 5 March 1970, after having served in the Republic of Vietnam from on or about 28 March 1969 to on or about 1 July 1969. He was transferred to the U.S. Army Reserve Control Group. 4. The applicant reenlisted in the Regular Army on 13 September 1971. 5. The applicant accepted non-judicial punishment on 29 March 1972, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for disobeying a lawful order on or about 7 March 1972. 6. The applicant's commander notified the applicant on 19 December 1972 that actions had been initiated to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for unsuitability due to personality disorders. 7. Before a special court-martial on 20 December 1972, at Fort Knox, KY, the applicant was found guilty of two specifications of being AWOL, from on or about 18 August through on or about 28 August 1972, and from on or about 16 September through on or about 24 October 1972. The court sentenced him to reduction to the rank/grade of private/E-1 and confinement at hard labor for 20 days (suspended for 30 days). 8. The applicant’s record contains a Report of Mental Status Evaluation that shows he underwent a mental status evaluation on or about 3 January 1973. The Report of Mental Status Evaluation is unsigned, so it is unclear whether the examining official was a licensed psychiatrist. However, the form shows: * his behavior was aggressive and his alertness was dull * his mood was depressed and his thinking process was confused * his memory was poor and his thought content was paranoid * he was mentally responsible and capable of understanding and participating in board proceedings 9. The applicant acknowledged receipt of the proposed separation notification on 4 January 1973. He consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effects of a waiver of his rights. He acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him. 10. The applicant’s commander formally recommended his separation from service, under the provisions of Army Regulation 635-200, for unsuitability. The separation authority approved the recommendation on 24 January 1973 and directed the issuance of a DD Form 257A (General Discharge Certificate). 11. The applicant was discharged on 1 February 1973. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 13, with Separation Program Number "46A" (Unsuitability). His service was characterized as under honorable conditions. 12. Army Regulation 635-200 provided the authority for the separation of enlisted personnel upon expiration of term of service; the authority and general provisions governing the separation of enlisted personnel prior to expiration of term of service; and the criteria governing the issuance of Honorable and General Discharge Certificates. a. Chapter 13 of the version in effect at the time provided for the separation of Soldiers for unsatisfactory performance. b. Paragraph 13-5a of the version in effect at the time provided for the separation of Soldiers for unfitness (misconduct). c. Paragraph 13-5b provided for the separation of Soldiers for unsuitability. (1) Sub-paragraph (1) applied to those Soldiers being separated for inaptitude. (2) Sub-paragraph (2) applied to those Soldiers being separated for character and behavior disorders [later deemed personality disorders]. 13. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) was not in use at the time of his service. His military medical record was not available for review. a. A review of his service record indicates he completed a mental status evaluation on 3 January 1973 and was found to meet retention standards in accordance with Army Regulation 40-501. A review of Department of Veterans Affairs' (VA) Joint Legacy Viewer (JLV) indicates he has not been diagnosed or treated with any behavioral health diagnoses. He has completed multiple VA Compensation and Pension (C&P) examinations starting in June 2015 and most recently August 2019. All C&P examinations were for physical conditions (right shoulder strain and lower back strain). On his 26 June 2015 C&P evaluation, his provider noted no behavioral health symptoms or diagnoses. b. He has a service-connected disability rating of 70% for non-behavioral health conditions. There is no documentation to support a behavioral health condition at the time of his discharge. He was evaluated and met retention standards at the time of his discharge. There is no behavioral health condition to consider with respect to mitigation of misconduct. 15. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, his bar to reenlistment, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in- service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 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 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Chapter 13 in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. It provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record. Paragraph 13-5b provided for the separation of Soldiers for unsuitability. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. a. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. b. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170018313 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20170018313 6 ABCMR Record of Proceedings (cont) AR20170018313 5