ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 August 2019 DOCKET NUMBER: AR20180004108 APPLICANT REQUESTS: an upgrade to his 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 he has never been in trouble with the law and is an outstanding citizen in his community and town. He would like for his discharge to be upgraded, in order to receive proper benefits and treatment. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 24 March 1970. b. He accepted nonjudicial punishment on: * 4 November 1970, for failure to obey a lawful order * 22 December 1970, for failure to obey a lawful order c. On 16 February 1971, he was convicted by a Summary Court-Martial Order Number 4 for resisting lawful apprehension on 7 January 1971, 12 January 1971, wrongfully having in his possession marihuana, 25 January 1971, failure to be at his appointed place of duty and on 26 January 1971, failure to be at his appointed place of duty. His sentence included reduction to Private/E-1, forfeiture of $75.00 per month for one month, 45 days of restriction and 45 days extra duty. d. On 22 March 1971, his immediate commander initiated the recommendation to separate him under the provisions of Army Regulation (AR) 635-212 (Discharge – Unfitness and Unsuitability). The reason for this proposed action were because of his frequent involvement in incidents of a discreditable nature with military authorities and an established pattern for shirking. e. On 22 March 1971, the applicant consulted with legal counsel. He was advised of the basis for the contemplated action to accomplish his separation for unsuitability under AR 635-212. In his request for discharge, he acknowledged: * he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him * the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for all benefits as a veteran under both Federal and State laws * he may expect to encounter substantial prejudice in civilian life * he elected not to submit any statements in his behalf f. Consistent with the chain of command recommendations the discharge was approved by the separation authority and the applicant was issued a General Under Honorable Conditions Discharge Certificate. g. The applicant was discharged from active duty on 5 May 1971 under the provisions of AR 635-212 for unsuitability. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year, 1 month and 12 days of active service this period and no lost time. He was awarded or authorized the: * National Defense Service Medal * Sharpshooter Marksmanship Qualification Badge (M-16) * Armed Forces Expeditionary Medal 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, AR 635-212 states that an individual is subject to separation when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort is unlikely to succeed. 6. The Board should consider the applicants’ petition in his service record in accordance with 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. He was discharged for a criminal offense and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. 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) 635-212. (Personnel Separations- Discharge Unfitness and Unsuitability) in effect at the time, sets forth basic authority for the separation of enlisted personnel. An individual is subject to separation when it is clearly established that: a. Despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort is unlikely to succeed. b. Rehabilitation is impracticable (as in cases of confirmed drug addiction) or he is not amendable to rehabilitation measures (as indicated by medical and/or personal history record; c. An unfitting medical condition (AR 40-501) is not the direct or substantial contributing cause of his unfitness (para 9b). 3. AR 635-200 (Active Duty Enlisted Separations) currently in effect, sets forth the basic authority for the separation of enlisted personnel. a. Honorable Discharge states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. General Discharge states A general discharge is a separation from the Army under honorable conditions. 4. DOD guidance, 25 July 2018, subject: Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity. Injustice, or Clemency Determinations, provides standards for Discharge Review Boards (DRBs) and Boards for Correction of Military /Naval Records (BCM/NRs) in determining whether relief is warranted on the basis of equity, injustice, or clemency. It states, in pertinent part: a. While not everyone should be pardoned, forgiven, or upgraded, in some cases, fairness dictates that relief should be granted. The Boards are trusted to apply this guidance and give appropriate consideration to every application for relief. b. This guidance does not mandate relief, but rather provides standards and principles to guide DRBs and BCM/NRs in application of their equitable relief authority. Each case will be assessed on its own merits. The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each board. c. Relief is generally more appropriate for nonviolent offenses than for violent offenses. d. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, DRBs and BCM/NRs should also consider, among other matters: • An applicant's candor • Severity of misconduct • Length of time since misconduct • Acceptance of responsibility, remorse, or atonement for misconduct • The degree to which the requested relief is necessary for the applicant • Character and reputation of applicant • Meritorious service in government or other endeavors • Evidence of rehabilitation • Availability of other remedies • Job history • Whether misconduct may have been youthful indiscretion • Character references //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180004108 4 1