ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  13 September 2019

	DOCKET NUMBER:  AR20180004487


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

FACTS:

1.  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 AC89-07048 on 21 March 1990.

2.  The applicant states he had a hardship, due to the circumstances at the time he was in the service.

3.  A review of the applicant’s service record shows:

   a. He was inducted into the Army of the United States on 15 September 1969.  
   
   b. He accepted non-judicial punishment on:
   
* 18 February 1970 for absenting himself from his place of duty from 8 February 1970 until 15 February 1970
* 27 March 1970 for absenting himself from his place of duty on 27 March 1970
   
   c. He was convicted by a Summary Court-Martial on 2 October 1970 for absenting himself from his unit on 15 February 1970, being AWOL on two occasions in February and March 1970.  The court sentenced him to confinement at hard labor for thirty days and forfeiture of $88.00 per month for one month and reduction to the grade of Private/E-1.  The sentence was approved on 1 October 1970.
   
   d. On 17 March 1972, the applicant's immediate commander notified him that he was considering the applicant for elimination from military service for unfitness, under (AR) 635-212 (Personnel Separations- Discharge -Unfitness and Unsuitability). 
   
   e. The applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel who advised him of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He elected not to submit a statement in his own behalf.  He acknowledged that:
   
* he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him
* he understood that, as 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 and he may expect to encounter substantial prejudice in civilian life
   
   f. On 4 April 1972, the separation authority approved the applicant's discharge for unfitness, under the provisions of AR 635-212 (Separation Program Number (SPN) 28B with his service characterized as undesirable.  
   
   g. His DD Form 214 shows he was discharged on 21 April 1972, under the provisions of AR 635-212 for unfitness and he was issued SPN Code 28B.  His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate.  He completed 1 year, 1 month and 9 days of active service with 538 days of lost time.

4.  AR 635-212 states, an individual was subject to separation for unfitness in case of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

5.  The Board should consider the applicant's submissions in accordance with the 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.  Based upon the short term of honorable service completed prior to repeated periods of AWOL, as well as the failure to accept responsibility and show remorse for the events leading to his separation, 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 (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), in effect at the time, set forth the policy for administrative separations for unfitness.  

	a.  Paragraph 3 (Policy) 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
* Rehabilitation is impracticable (as in cases of confirmed drug addiction) or he is not amenable to rehabilitation measures (as indicated by the medical and/or personal history record)
* An unfitting medical condition is not the direct or substantial contributing cause of his unfitness

	b.  Paragraph 4 (Types of Separation) states an individual separated by reason of unfitness will be furnished an Undesirable Discharge Certificate except that an honorable or general discharge certificate may be awarded if the individual being discharged has been awarded a personal decoration or if warranted by the particular circumstances in a given case.

3.  AR 635-200 (Personnel Separations - Enlisted Separations), currently in effect, sets forth the basic policy for separation of enlisted personnel.

	a.  Paragraph 1-9d (Honorable Discharge) states that 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 of the member’s age, length of service, grade, and general aptitude.  

	b.  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 by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record.  

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 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180004487


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