ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 August 2019 DOCKET NUMBER: AR20180002123 APPLICANT REQUESTS: an upgrade to his general, under honorable conditions discharge to honorable 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 his discharge should be upgrade because he did not do anything dishonorable while in the service. He states he’s not sure why he was given a general under honorable conditions discharge. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 29 December 1972. b. He was trained in military occupation specialty 45K (Tank Turret Repairman) and stationed at Fort Lewis. c. On 11 September 1973, he accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from his appointed place of duty, disobeying a lawful order given by SP5 XF____, and disrespect to SP5 X___. His punishment was reduction to private, forfeiture of $76.80 a month for one month, two weeks extra duty and two weeks restriction. That portion of the punishment that reads two weeks restriction is suspended for a period of 60 days. On 2 October 1973, the applicant appealed his punishment stating he thought it was too stiff for his first offense. The Superior Acting on the Appeal granted in part, the reduction to the grade of private is suspended for a period of six months on 24 October 1973. On 26 October 1973, the suspension of the punishment of two weeks restriction and reduction to the grade of E-1 was vacated and the unexecuted portion was duly executed. d. On 17 October 1973, he accepted NJP for wrongfully possessing a controlled substance, paraphernalia containing residue of marijuana. His punishment was forfeiture of $90.82 a month for one month, two week restriction and 2 weeks extra duty. That portion of the punishment that reads “Forfeiture of $90.82 a month for one month and two weeks restriction” is suspended for a period of 60 days. On 26 October 1973, the suspension of forfeiture of $90. A month for one month and two weeks restriction was vacated and the unexecuted portion was duly executed. e. On 27 November 1973, he was convicted by special court-martial for one specification of unlawfully striking Private First Class X____ on the face with an open hand on 24 October 1973. The court sentenced him to forfeit $75 per month for one month and to perform extra duty for three weeks. The sentence was approved and duly executed on 18 December 1973. f. On 23 January 1974, the applicant’s commander recommended he be required to appear before a board of officers convened under the provisions of Army Regulation (AR) 635-200 Chapter 13 for the purpose of determining whether he should be discharged before the expiration of his term of service. He subsequently advised the applicant that proceedings to discharge him under the provisions of AR 635-200 had been initiated. g. On 26 February 1974, he was convicted by special court-martial for three specifications of failing to obey a lawful order on the 4th , 5th and 6 January 1974. The court sentenced him to be reduced to the grade of private and forfeit $150 pay per month for 3 months. The sentence was approved and duly executed on 11 March 1974. h. On 22 March 1974, a waiver of rehabilitative transfer was approved in the elimination proceedings and directed that a board of officers be convened UP Chapter 13, AR 635-200 to determine if the applicant should be eliminated from the service. i. On 3 April 1974, notification was given to the applicant to appear before a Board of Officers. j. On 30 April 1974, the Board of Officers convened and recommended the applicant be discharged from the service because of unsuitability with issuance of a general discharge certificate (DD Form 257A). k. On 6 June 1974, in accordance with the recommendation dated 23 January 1974 and the Board of Officers, the separation authority approved the discharge and issuance of a general discharge. l. On 12 June 1974, he was discharged from active duty under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel), chapter 13 with an under honorable conditions (general) discharge. His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 5 months, and 14 days of active service. It also shows he was awarded or authorized: * National Defense Service Medal * Marksman Marksmanship Qualification Marksman (M-16) Badge 4. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within the board’s 15 year statute of limitations. 5. By regulation, 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 his is not amenable to rehabilitation measures. An individual separated by reason of unfitness will be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstances in his case. 6. 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 on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the short term of honorable service completed prior to a pattern of misconduct which included violence towards others, as well as the applicant already receiving a General Discharge, the Board concluded that there was insufficient evidence of an error or injustice which wold warrant making a change to the applicant’s characterization of service. 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, 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. Chapter 13 (Separation for Unfitness or Unsuitability), paragraph 13-5a, 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, or rehabilitation is impracticable or his is not amenable to rehabilitation measures. An individual separated by reason of unfitness will be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstances in his case. 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 the 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, 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 upgrade service characterization. ABCMR Record of Proceedings (cont) AR20180002123 5 1