ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 18 July 2019 DOCKET NUMBER: AR20180001993 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 he was young and made a bad decision by not fighting the discharge he was given. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 19 January 1966. He held the military occupational specialty 71F (Postal Clerk). b. He served in Korea from 22 October 1966 to 28 March 1968. c. He accepted nonjudicial punishment under Article 15 for infractions on/for: * 11 July 1966, absent without leave (AWOL) from 4 to 8 July 1966 * 15 September 1966, AWOL from 6 to 15 September 1966 * 25 November 1966, breaking two windows and damaging a wall partition while under the influence of alcohol * 7 December 1966, wrongfully distributing the contents of a butt can full of water and cigarette butts on the beds of four members of his platoon, committing a nuisance d. On 9 February 1967, he was convicted by a special court-martial of one specification of being drunk and disorderly at Sonju-ri, Korea on or about 21 January 1967. The court sentenced him to forfeiture of $50.00 per month for 3 months. The sentence was approved on 21 February 1967. e. On 15 July 1967, he was convicted by a special court-martial of one specification of unlawfully entering the arms room on 17 June 1967. The court sentenced him to confinement with hard labor for 1 month. The sentence was approved on 17 July 1967. f. On 1 September 1967, he was tried and convicted by a special court-martial at Camp Coursen, Korea of one specification of being absent from his unit on 9 August 1967 (guilty); one specification of willfully disobeying an order from his superior officer, on 9 August 1967 (guilty); one specification of willfully disobeying an order from his superior non-commissioned officer on 9 August 1967 (guilty); and one specification with the expressed intent to commit arson; attempt to saturate a building with gasoline on 14 August 1967 (not guilty). The court sentenced him to confinement with hard labor for 4 months, forfeiture of $37.00 per month for 4 months, and reduction to the grade of private/E-1. On 5 September 1967, the convening authority approved the sentence. g. The complete facts and circumstances surrounding his discharge are not available for review. However, his records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows: * on 19 July 1968, he was discharged from active duty under the provisions of Army Regulation 635-212 (Personnel Separations Discharge Unfitness and Unsuitability) with an under other than honorable conditions discharge * he was assigned Separation Program Number 28B (Unfitness) * he completed 1 year, 11 months, and 26 days of active service with 7 periods of lost time from: 16 May to 6 June 1966; 4 to 7 July 1966; 6 to 15 September 1966; 17 July to 9 August 1967; 15 to 30 August 1967; 2 September to 10 December 1967, and 5 to 15 May 1968 * he was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar 4. By regulation AR 635-212, 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. 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. 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 is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the short term of honorable service completed prior to a pattern of misconduct, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. 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 635-212 (Personnel Separations Discharge Unfitness and Unsuitability) then in effect, set forth the basic authority for separation of enlisted personnel for unfitness. Individuals would be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warranted a general or honorable discharge, when it had been determined an individual's military record was characterized by one or more of the following: (a) frequent incidents of a discreditable nature with civil or military authorities; (b) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault upon a child, or other indecent acts or offenses; (c) drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana; (d) an established pattern for shirking; or (e) an established pattern showing dishonorable failure to pay just debts. a. An honorable discharge is a separation with honor. 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 member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. 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// ABCMR Record of Proceedings (cont) AR20180001993 4 1