ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 January 2020 DOCKET NUMBER: AR20180003310 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 22 January 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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, in effect, he asked for a different military occupational specialty (MOS) and had words with a captain; the next thing he knew, he was going home. He did not have the opportunity to talk to a Judge Advocate General (JAG) corps officer (JAGC). He wants to know if he is eligible for benefits. He was young and after 43 years, he needs some answers. 3. The applicant enlisted in the Regular Army on 30 April 1973. 4. Subsequent to enlistment, the applicant was found guilty of misdemeanor possession of marijuana. He was fined $500.00 and was ordered to be confined for 180 days. 5. The applicant’s unit commander, on 5 July 1973, initiated actions to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for fraudulent entry into the Armed Services. 6. The applicant acknowledge receipt of the proposed separation memorandum on 5 July 1973 and declined to make a statement in his own behalf. 7. The applicant's company, battalion, and brigade commanders recommended his retention on active duty. Discharge action based on fraudulent entry was waived and retention on active duty was authorized on 10 July 1973. 8. The applicant received non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * on 18 July 1973, for being sleep upon his post, on or about 17 July 1973 * on 14 August 1973, for being absent without leave (AWOL) from on or about 3 August 1973 to on or about 12 August 1973 * on 14 September 1973, for being AWOL from on or about 4 September 1973 to on or about 11 September 1973 9. The applicant underwent a mental status evaluation on 28 September 1973. The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows he had normal behavior, was fully alert and oriented, and had clear thought process and normal thought content. The evaluating physician determine he had the mental capacity to understand and participate in any administrative proceedings and he was cleared for any administrative action deemed appropriate by his Command. 10. The applicant was notified by his immediate commander on 9 October 1973 that he was initiating actions to separate him from service under the provisions of Army Regulation 635-200, paragraph 13-5a (1), for unfitness due to his frequent incidents of a discreditable nature with civil or military authorities. The applicant acknowledged the proposed separation notification and was advised of his rights: * to present his case before a board of officers * to submit statements in his own behalf * to be represented by counsel * to waive the above rights in writing 11. The applicant's commander formally recommended, on 10 October 1973, the applicant's appearance before a board of officers, to determine if he should be separated prior to the expiration of his term of service, and separation under the provisions of Army Regulation 635-200, paragraph 13-5a (1), for unfitness due to his frequent incidents of a discreditable nature with civil or military authorities. He noted in his recommendation: [The applicant] was placed in another class upon being recycled to this unit from the Admin School. His participation in his class and the supplyman’s school has been below minimal standards. His instructors upon noticing individual's lack of interest and defective attitudes tried counselling, but this proved to not help. [The applicant] was counseled by his Drill Sergeant, and the Commander. This proved to be just as fruitless. [The applicant's] interest in becoming an acceptable soldier had deteriorated so that he completely discontinued his attendance at the school. If [the applicant] is allowed further service he will definitely become a disciplinary problem. Further rehabilitative measures or assignments will not prove effective because [the applicant] has made it obvious he has no desire to come above substandard. 12. The applicant's record is void of the decision and or outcome in regards to his possible appearance before a board of officers. 13. The applicant consulted with counsel on 9 October 1973 and signed a letter showing he was advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, Chapter 13. He was advised he could expect to encounter substantial prejudice if a general discharge (under honorable conditions) was issued, and was further advised that as the result of issuance of a discharge under conditions other than honorable (UOTHC), he could be ineligible for many or all benefits as a veteran under Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. He made the following elections of his rights: * be represented by counsel [waived further representation] * submit statements in his own behalf [he did not make any statements] * to have his case heard by a board of officers * obtain documents to be presented to the separation authority * waive any of these rights [he elected to waive all rights] * withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge 14. The applicant's commander formally recommended his separation from service under the provisions of Army Regulation 635-200, Chapter 13. The separation authority approved the recommended discharge on 24 October 1973 and directed that he be reduced to the lowest enlisted grade of E-1 and that he be issued a DD Form 258A (Undesirable Discharge Certificate). 15. The applicant was discharged on 26 October 1973. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a (1). His DD Form 214 confirms he was discharged in the lowest enlisted grade, his service was characterized as UOTHC, and he was issued an Undesirable Discharge Certificate. 16. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board noted that the applicant was discharged as a trainee with approximately 5 months of service and, even though the record clearly shows the applicant willfully refused to Soldier, the Board agreed that the characterization of under other than honorable conditions was too harsh given the facts of the case. Based on a preponderance of evidence, the Board determined the applicant's record should be corrected to show his service was characterized as under honorable conditions (general). 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: 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 his DD Form 214 to show his service was characterized as under honorable conditions (general). 3/11/2020 X CHAIRPERSON 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 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 sets forth the basic authority for the administrative separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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. Paragraph 3-7b provides that an under honorable conditions (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. c. Chapter 13, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts. This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. 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, Boards 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. b. 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//