RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 June 2019 DOCKET NUMBER: AR20180003830 APPLICANT REQUESTS: an upgrade of his under honorable condition discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD 214 (Report of Separation from Active Duty) 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 stated that as a 19 year old kid in Germany he was asked if he wanted to go home, and he said yes. He saw it as an opportunity to leave what he perceived as an unjust system. The levels of racism he endured during this period in his life and period of time for our country was more than he could bare at the time. There were no hearings or charges to his knowledge, he was asked to sign paperwork with five months from completing a three year tour. 3. The applicant provided his DD Form 214 showing his service from 30 September 1971 to 15 April 1974. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 30 September 1971. b. He served in Germany from 23 February 1972 to 1 April 1974. c. He received nonjudicial punishment under Article 15 for/on: * 9 April 1973, behaving with disrespect to a superior commissioned officer * 4 June 1973, failure to go to prescribed place of duty * 18 July 1973, failure to go at the appointed time to place of duty * 28 August 1973, failure to go at the appointed time to place of duty * 2 November 1973, wrongful possession of 5 smoking pipes with marijuana residue * 3 January 1974, absence from assigned place of duty * 21 January 1974, wrongful possession of 2 smoking pipes with marihuana residue and 1 mandrax tablet, his punishment consisted of reduction to E-1 d. On 6 February 1974, he was barred from reenlisting. e. On or about March 1974, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 13 for unsuitability. f. On or about March 1974, he acknowledged receipt of the commander's intent to separate him and consulted with legal counsel. He was advised of the basis for the contemplated separation for unsuitability, the type of discharge he could receive and its effect on further enlistment or reenlistment. He waived consideration of his case by a board of officers and waived personal appearance before a board of officers. He further indicated that he understood: * he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he could be ineligible for many or all benefits as a veteran under federal and state laws as a result of the issuance of an under other than honorable conditions discharge g. On or about March 1974, the unit commander recommended separation from the service for unsuitability (Apathy - lack of appropriate interest, defective attitudes, and inability to expend effort constructively) and waiver of further rehabilitative efforts. The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action. The unit commander provided a synopsis of the applicant's conduct as follows: since assignment to this unit, the applicant was given a rehab transfer to this unit on 9 October 1973. He counseled the applicant at this time and assured him that he would have a new start in this unit. His supervisors continuously had problems insuring that the applicant was at work and doing the job he was instructed to do. He has received many chances to change his attitude and expend his efforts constructive but continues to be apathetic in his performance of duty. The commander felt any further military service will hinder the mission of this unit. h. On 1 April 1974, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, chapter 13, for unsuitability and directed that he be furnished a general discharge certificate. i. On 15 April 1974, he was discharged. His DD Form 214 showed he was discharged under the provisions of chapter 13 of AR 635-200, paragraph 13-5b (3) for unsuitability, with a characterization of service as general, under honorable conditions. He completed 2 years, 6 months, and 16 days active service during this period. It also shows he was awarded or authorized: * National Defense Service Medal * Sharpshooter Marksmanship Qualification Badge with Rifle Bar * Sharpshooter grenade 4. By regulation (AR 635-200), a Soldier may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. The service of Soldiers separated under AR 635-200, chapter 13 will be characterized as honorable or under honorable conditions as warranted by their military record. 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 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 evidence of post-service achievements for the Board to consider. Based upon the pattern of misconduct and the failure of the applicant to overall the multiple rehabilitative measures (multiple Art 15s), 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 635-200 (Personnel Separations) sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel. Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability. Paragraph 13-5b (3) provided for separation for unsuitability, which included apathy, lack of appropriate interest, defective attitudes and inability to expend effort constructively. b. 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. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). c. Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharged because of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. 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. ABCMR Record of Proceedings (cont) AR20180003830 4 1