ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 July 2019 DOCKET NUMBER: AR20180001510 APPLICANT REQUESTS: an upgrade of his general discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for Review of Discharge 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 that he was working on his problems, but was discharged anyway, and that he does not think it was fair that he was busted from E-5 to E-1. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 19 May 1960. b. On 15 December 1961, he was convicted by a summary court martial for breaking a restriction. He was ordered to forfeit $55 per month for one month and was reduced to E-1 as punishment. c. On 6 March 1962, he was convicted by a summary court martial for losing his pistol. He was ordered to forfeit $55 per month for one month and was reduced to E-1 (with a 6 month suspension) as punishment. d. He served in Germany from 1 October 1962 to 8 April 1963. He was honorably discharged on 30 May 1962 for immediate reenlistment. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 2 years and 12 days of active service. a. e. He reenlisted on 31 May 1962. He subsequently served in the Dominican Republic from 30 April 1965 to 22 October 1965 and Vietnam from 24 December 1965 to 27 September 1966. f. On 6 January 1965, he received nonjudicial punishment (NJP) under Article 15 for being absent without leave (AWOL) from 4 January 1965 to 5 January 1965. He was restricted to the company area for 14 days as punishment. g. General Orders Number 748, issued by Headquarters, 101st Airborne Division, Vietnam, on 16 September 1966, awarded him the Army Commendation Medal with V Device for heroism on 9 June 1966. h. On 7 July 1967, he received NJP under Article 15 for failing to go to his appointed place of duty. He ordered to forfeit $20 per month for one month, ordered to serve 14 days extra duty, and restricted to the company area for 14 days as punishment. i. On 11 September 1967, he received NJP under Article 15 for speeding and failing to have sufficient funds in his account to pay his bills. He was reduced to E-1 as punishment. j. On 13 November 1967, the applicant's immediate commander notified him that a discharge action was being initiated against him for elimination from military service for unfitness, under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). The commander cited the specific reasons as the applicant's frequent incidents of discreditable nature with civil or military authorities. He advised the applicant of his rights. k. The applicant’s acknowledgment is unavailable in his record. He was notified that: * he had the right to present his case before a board * he could submit statements on his own behalf * he could be represented by counsel l. The immediate and intermediate commanders recommended approval of the discharge action with the issuance of an undesirable discharge m. On 15 January 1968, the separation authority approved the applicant’s discharge under AR 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). He would be issued a General Discharge Certificate. n. On 23 January 1968, he was discharged from active duty under the provisions of AR 635-212 for unfitness. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he received a characterization of service of under honorable conditions. He completed 5 years, 7 months, and 23 days years of active a. service, with 2 years and 12 days of prior service. Time lost is not listed in his DD 214. It also shows he was awarded or authorized: * Parachute Badge * Army Commendation Medal * Armed Forces Expeditionary Medal * Combat Infantryman’s Badge * National Defense Service Medal * Vietnam Service Medal * Vietnam Campaign Medal 4. By regulation, action will be taken to separation 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. An individual separated by reason of unfitness will be furnished an Undesirable Discharge Certificate. 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 review of the application and all evidence, the Board determined relief was warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense guidance for consideration of discharge upgrade requests to the complete evidentiary record. The Board considered the applicant's service record, his excellent efficiency and conduct ratings in Vietnam, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found the applicant served in the Republic of Vietnam, and received a valor award. Based on a preponderance of evidence, the Board agreed the misconduct was not severe, and based on the overall record of service, the character of service was too harsh; the Board agreed to change his character of service to Honorable. 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 reissuing him a DD Form 214 for the period ending 23 January 1968 showing his character of service as Honorable. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 8/2/2019 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. ADMINISTRATIVE NOTE(S): A review of the applicant’s service records shows he is entitled to awards not listed on his DD Form 214. As a result, amend his DD Form 214 ending on 23 January 1968 as follows: * Delete Army Commendation Medal * Add Army Commendation Medal with V Device * 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 (Personnel Separations – Discharge – Unfitness and Unsuitability), in effect at the time, set forth the policy for administrative separations for unfitness. a. Paragraph 3 (Policy) states 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 * Rehabilitation is impracticable (as in cases of confirmed drug addiction) or he is not amenable to rehabilitation measures (as indicated by the medical and/or personal history record) * An unfitting medical condition is not the direct or substantial contributing cause of his unfitness b. Paragraph 4 (Types of Separation) states an individual separated by reason of unfitness will be furnished an Undesirable Discharge Certificate except that an honorable or general discharge certificate may be awarded if the individual being discharged has been awarded a personal decoration or if warranted by the particular circumstances in a given case. 3. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). 4. AR 635-200 (Active Duty Enlisted Separations), currently in effect, sets forth the basic policy for separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. a. b. Paragraph 3-7b (General Discharge) states 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. 5. 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. //NOTHING FOLLOWS//