ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 April 2019 DOCKET NUMBER: AR20170019837 APPLICANT REQUESTS: In effect, an upgrade of his characterization of service from under honorable conditions to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two DD Form 293 (Application for the Review of Discharge) * Letter from the United Services Automobile Association (USAA) * Two DD Forms 214 (Report of Separation from Active Duty) * Two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) * Character Reference Letter * E-mail * Two Congratulatory Letters * Letter of Appreciation * Two Certificates 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 needs his discharge upgraded so that he may be eligible for home owners insurance from USAA. He also states, in effect, that he honorably completed three tours of enlistment prior to his last period of enlistment. The Army started a radical reduction in force post-Vietnam. At the time he was on the weight management program and he was given a short term ultimatum to lose weight immediately. It was not possible in the time allowed and he was separated from the Army with a general discharge. This discharge is barring him from getting home owners insurance from USAA. 3. A DD Form 293 that he provides show he requests, in effect, that his performance since he has been separated from the military be considered in upgrading his discharge. He states he was a National Rifle Association Certified Law Enforcement firearms instructor and he served in Law Enforcement for 16 years before retiring in 2014. 4. The applicant completed three honorable periods of Regular Army (RA) service, which extended from 6 October 1967 to 19 August 1969, 20 August 1969 to 29 August 1973, and from 30 August 1973 to 17 August 1976. He was issued a separate DD Form 214 for each period of service. 5. His DA Form 2-1 (Personnel Qualification Record) shows During the above periods of service he served in Korea from 3 March 1968 through 1 March 1970 and in Alaska from 29 April 1972 until he was discharged. 6. Between 1969 and 1975, he accepted five nonjudicial punishments (NJP) under the provisions of Article 15, Uniformed Code of Military Justice (UCMJ). All five NJP’s were accepted prior to the period of service under review for various offenses to include and for the following offenses. : * Failure to sign out on the personnel registrar * disorderly conduct by fighting another service member * being absent from his appointed place of duty * failing to sign out prior to departing from his unit * wrongfully appropriating five gallons of gasoline valued at $135 (property of the U.S. Army) on 14 and 19 October 1972 * stealing 4 rolls of 90 pound felt paper, 3 rolls of 15 pound felt paper, a 5 pound bucket of tar, and 1 pint can of roofing sealer, of a value of $122.18, (property of the U.S. Army. 7. On 18 August 1976, while in Alaska, he reenlisted in the RA for 4 years, for military occupational specialty 64C (Motor Transport Operator), and in the rank of specialist five/pay grade E-5. 8. A Report of Mental Status Evaluation shows the applicant underwent a psychiatric examination on 10 April 1977. He was described as being mentally competent, able to distinguish right from wrong, and able to adhere to the right. The applicant was psychiatrically cleared for administrative action deemed appropriate. Additionally, it provides he was 27 years old and married, he was being separated from the service due to his overweight condition, and related no pertinent psychiatric history and indicated he recently had a physical exam which indicated no significant medical problems. 9. On 20 April 1977, the applicant’s unit commander informed the applicant that he was recommending that he be separated under the provisions of chapter 13-5b(3), Army Regulation (AR) 635-200, for unsuitability. Based specifically on his failure to meet weight standards set forth in AR 600-9 (Army Weight Control Program), in effect at the time. 10. Having been advised by legal counsel, the applicant authenticated a statement with his initials and signature in which he indicated he understood the ramifications of receiving a less than fully honorable discharge, he waived consideration of his case by a board of officers, declined the opportunity to submit statements in his own behalf, and acknowledged that he understood he may expect to encounter substantial prejudice in civilian life if a general discharge was issued to him. 11. On 22 April 1977, the applicant’s unit commander recommended he be separated under the provisions of chapter 13-5b(3), AR 635-200, for unsuitability. He stated the reason for this recommendation was the applicant’s unwillingness, despite repeated counselling’s and medical assistance, to meet the weight standards proscribed by AR 600-9. Additionally, this document shows: a. The applicant had been counseled by his commander concerning his overweight problem on 8 Oct 1976, 5 January and on 8 April 1977, and he failed to show any willingness to comply with the Army's [weight] standards. b. A rehabilitative attempt was considered unwarranted due to the excessive counselling by both medical personnel and the applicant’s chain of command. The applicant’s present difficulties was not due to his duty assignment, but rather his unwillingness to control his appetite and food consumption. His Standard Form 88 failed to indicate any medical reason for his obesity. 12. On 5 May 1977, the applicant’s intermediate commander recommended further rehabilitation be waived. The applicant’s failure to respond to previous counseling and medical assistance attempts and his expressed desire to leave the service indicated that he would not respond to further rehabilitation. 13. On 9 May 1977, the separation authority waived further rehabilitation requirements, approved the separation action, and directed the issuance of a General Discharge Certificate. 14. On 17 May 1977, the applicant was discharged under the provisions of chapter 13-5b(3), AR 635-200, for unsuitability, with a General Discharge Certificate. His DD Form 214 shows he completed 9 months of net active service this period and 9 years, 7 months, and 12 days of total active service. His authorized awards are listed as the National Defense Service Medal, Armed Forces Expeditionary Medal, Good Conduct Medal (3rd Award), and Operator Badge. 15. The applicant provides in support of his request: * Letter showing USAA advised him that he was not eligible to for USAA membership because of his general discharge * Letter from the Idaho Department of Corrections showing the applicant received the excellence award for his service * Letter from the Governor of Idaho stating the applicant was a dedicated employee of the Idaho Department of Corrections for 16 years * Certificate of Service from the Idaho Department of Corrections showing he was a dedicated hard worker for 16 years, until retirement * Letter of Appreciation showing the applicant severed as a member of the training team and he demonstrated professionalism and dedication as a team member * 2002 Fire Season Award showing the applicant received accolades for the sacrifices he made for a job well done fighting fires * Certificate of Appreciation for dedication and work ethics as shown by very limited use of sick leave; he used only 3.5 hours 16. The applicant was discharged under the provisions of chapter 13-5b(3), AR 635-200, for unsuitability. Because he failed to meet the Army’s weight standards. 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. 17. AR 600-9 specifies that each Soldier is responsible for meeting the standards prescribed in this regulation. Commanders and supervisors will implement the Army Weight Control Program, to include evaluation of the weight and military appearance of all Soldiers under their jurisdiction, to include measuring body fat as prescribed in this regulation. 18. The applicant’s weight, at the time, is unknown and the specific measures that were taken to help assist him in losing weight are not in the available record. In reaching its determination, the Board can consider the applicant’s submissions, his petition, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined that there is sufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found the statement and evidence of prior honorable service as well as honorable post-service achievements to be compelling. The Board agreed that the applicant’s case warrants clemency in that the applicant’s prior honorable service and post-service achievements have mitigated the misconduct resulting in the discharge characterization. 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: 1. 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 amending his DD Form 214 with effective date 77-05-17: * item 9c (Authority and Reason) “Secretarial Authority” with a commensurate SPD, vice “PARA 13-5B (3), AR 635-200, SPD: JMJ” * item 9e (Character of Service): “Honorable” vice “Under Honorable Conditions” * item 9e (Reenlistment Code): “RE-1” vice “RE-3” __________X____________________ CHAIRPERSON 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. ADMINISTRATIVE NOTE(S): Not Applicable 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. AR 600-9 (The Army Weight Control Program) establishes weight control in all the Services. It states Commanders and supervisors are responsible to ensure all members of their command maintain proper weight, body composition and personal appearance. Those members exceeding standards will be medically evacuated and provided weight reduction counseling. a. If an individual's condition is diagnosed by medical authorities from an underlying or associated disease process, health care personnel will prescribe treatment, hospitalize the individual (AC only), and determine whether the individuals condition is medically disqualifying for continued service. b. If it is determined there is no underlying health condition for exceeding the weight standards; these facts will be documented and the member will be entered in a weight control program. Suspension of favorable personnel actions will be initiated. (1) Maximum allowable weight will be determined and a safe attainable weight loss goal will be established by health care personnel. The weight loss goal will be designed to enable the member to lose excess body fat and progress to a point, preferably below, but at least, to the maximum allowable weight. Weigh-ins will occur monthly to determine progress. (2) After a period of dieting and/or exercise for 6 months, personnel who have not made satisfactory progress toward their maximum allowable weight and still exceed the weight standard will be re-evaluated by health care personnel, of no underlying disease is associated the individual will be subject to separation. (3) As an exception to the aforementioned 6 months, if a member who has no weight loss after any two consecutive monthly weigh-ins may be referred by the commander or supervisor to a medical re-evaluation. If health care is not able to determine a medical reason and if the individual is not compliant and still exceeds the standards the commander or supervisor will inform the member progress is unsatisfactory and he or she is subject to separation. 3. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. It provides: a. Chapter 13 established policy and prescribed the procedures for separating individuals for unfitness or unsuitability. Paragraph 13-5b(3), provided for an unsuitability discharge due to apathy, which included those individuals who displayed a lack of appropriate interest and/or 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. b. 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. c. Commanders may waive the rehabilitation transfer because it would not be in the best interest of the Army as it would not produce a quality Soldier. 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. 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 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. 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//