ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 May 2019 DOCKET NUMBER: AR20180001256 APPLICANT REQUESTS: an upgrade to his general, under honorable conditions discharge characterization APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 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: a. At the time of enlistment, he was a seventeen year old young man. He questions why his actions then, be considered as his character as a man now? With two uncles retiring from the military, he says he was prepared for the physical and mental aspects of transforming into a good Soldier. His plan was to follow in their footsteps. He was not prepared for or mature enough to endure the outward racism from some of the caucasian Soldiers he encountered. b. In addition, both Article 15’s he received were from disobeying orders or his lack of performance as a Soldier. He received both the Article 15’s for not being mature enough to ignore the verbally abuse, racist language or aggressive disposition of other Soldiers. He never threw the first punch in either situation but the truth didn’t have any bearing in his case. c. Since reluctantly accepting his discharge papers, the young man he once was is not the man that he has evolved into today. He worked as a correctional officer and presently works as a contracted armed guard at a government facility. He requests an upgrade to his discharge, because he may not have appeared to be honorable, but I was and still is today. a. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 23 August 1972. b. He accepted non-judicial punishment (NJP) on 22 January 1973, under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to be at his appointed place of duty at the prescribed time. His punishment included reduction to private/E-1, forfeiture of $50.00 pay, and 7 days extra duty and restriction to company area. c. He accepted NJP on 20 July 1973, under the provisions of Article 15, UCMJ, for departing his unit in an absent without leave status on 16 July 1973 and did not return to military control until 18 July 1973. His punishment included 14 days restriction and extra duty and forfeiture of $50.00 pay for 1 month. d. On 8 August 1973, the applicant's immediate commander notified him of his intent to initiate separation proceedings against him under the provisions of chapter 13 of Army Regulations (AR) 635-200 (Personnel Separations-Enlisted Separations) for unsuitability. The commander advised him of his rights to counsel, and provided him an opportunity to submit statements on his behalf. e. On 15 August 1973, the applicant signed the acknowledgement of notification, waived his rights to counsel and waived the consideration of his case by an administrative separation board. He did not provide a statement on his behalf. f. The applicant was recommended for separation by his commander and his chain of command concurred. Consistent with the chain of commands recommendations, the separation authority approved his separation on 11 September 1973 and directed the applicant to receive a general, under honorable conditions character of service discharge. g. The applicant was discharged on 20 September 1973, under the provisions of AR 635-200, chapter 13, paragraph 13-5b, because of unsuitability. His DD Form 214 shows that he had 1 year and 26 days of active service with lost time from 16 July 1973 to 17 July 1973. He was awarded or authorized the National Defense Service Medal and the Second Class Badge 40 MM Grenade Launcher. 4. By regulation (AR 635-200), says that action will be taken to separate an individual for unfitness when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort is unlikely to succeed or rehabilitation is impracticable or he is not amenable to rehabilitation measures (as indicated by the medical and/or personal history record. 1. 5. 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 reviewing the application and all supporting documents, to include the DoD guidance for consideration of discharge upgrade requests, the Board determined that relief was not warranted. The Board found insufficient in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based upon the short term of service completed prior to a pattern of misconduct and a preponderance of evidence, the Board concluded that the characterization of service received at the time of discharge was not in error or unjust. 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. 6/6/2019 X CHAIRPERSON Signed by: 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 Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states 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) 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. When a member’s service is characterized as general, except when discharged by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. c. Paragraph 13, in effect at that time, says that action will be taken to separate an individual for unfitness when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort is unlikely to succeed or rehabilitation is impracticable or he is not amenable to rehabilitation measures (as indicated by the medical and/or personal history record. d. Paragraph 13-5a covers unfitness which is frequent incidents of discreditable nature with civil or military authorities. 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.