ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 4 April 2019 DOCKET NUMBER: AR20180002169 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) be upgraded to an honorable 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2000043640 on 21 September 2000. 3. The applicant states as his records show he requested a hardship reassignment because his father was very ill and dying. He was then reassigned to Fort Sheridan, ILL. He then requested a discharge after his father passed away. He was told he would receive a general discharge but it didn’t happen. He did nothing wrong and completed all training as ordered. The situation was unavoidable. All documents were submitted by his mother after his father passed away. He has no copies. He wasn’t made award of the type of discharge he received until 23 January 1974 and by that time he was already discharged. He is not asking for benefits but just to have his discharge with some honors as his three brothers who were marines. 4. On 27 September 1971 at the age of 19 the applicant enlisted in the Regular Army. 5. On 10 August 1972, the applicant was arraigned and tried in Special Court-Martial Order Number 4. He was found guilty of being absent without leave (AWOL) from on or about 6 May 1972 to on or about 20 September 1972. He was sentenced to be reduced to the lowest enlisted grade. The sentence was adjudged on 7 November 1972. 6. On 26 January 1973, he received non-judicial punishment (NJP) for: * On 15, 17, and 18 December 1973, fail to go to his appointed place of duty * On 16 December 1973, fail to remain at his appointed place of duty 7. On 15 March 1973, he received NJP for being AWOL from on or about 8 March 1973 to on or about 15 March 1973. 8. On 12 December 1973, the unit commander notified the applicant of the intent to separate him pursuant to Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), Chapter 13, Section I, paragraph 13-5a (4) for unfitness based upon his lack of military bearing and responsibility; his evident apathy towards all military tasks and advised him of his available rights. The applicant was advised by legal counsel and acknowledged that he understood his available rights. 9. On 19 December 1973, the commander recommended the applicant be discharged under the provisions of AR 635-200, Paragraph 13-5a (4). 10. On 15 January 1974, the appropriate authority approved the recommendation for discharge and directed the applicant receive an undesirable discharge certificate. 11. On 23 January 1974, the applicant was discharged accordingly. He completed 1 year, 5 months, and 20 days of total active service. 12. The applicant states as his records show he requested a hardship reassignment because his father was very ill and dying. He was then reassigned to Fort Sheridan, ILL. He then requested a discharge after his father passed away. He was told he would receive a general discharge but it didn’t happen. He is not requesting veteran’s benefits but would like to be discharge with honor. His records show he went AWOL twice for a total of 247 days. 13. Army Regulation 635-200 provided for separation due to unsatisfactory performance when, in the commander's judgment when the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order, and morale; the service member would be a disruptive influence in the future the basis for separation would continue or recur; the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely. The issuance of a discharge under other than honorable conditions is normally considered appropriate; however, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 14. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. 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 post-service achievements for the Board to consider. Based upon the record, 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. 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. Army Regulation 635-212 (Personnel Separations, Discharge, Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. A discharge under other than honorable conditions was normally considered appropriate. However, at the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge. 3. Army Regulation 635-200 (Personnel Separations, Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 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 on the basis of 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) AR20180002169 2 1