ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  22 July 2019

	DOCKET NUMBER:  AR20180005043


APPLICANT REQUESTS:  an upgrade to his under honorable conditions discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 293 (Application for the Review of Discharge or Dismissal from The Armed 
Forces of the United States)

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 while serving in the military, he was subjected to hostile 
conditions which challenged his beliefs.  He admits he was young and did not 
understand the importance of that type of conditioning.  However, he loves his country 
and believes he served his country well in Vietnam.

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

	a.  Having prior service, he enlisted in the Regular Army on 17 July 1967.

	b.  He served in Vietnam from 21 November 1968 to 15 November 1969.

	c.  He accepted nonjudicial punishment (NJP), Article 15 of the Uniform Code of 
Military Justice (UCMJ) on 12 August 1967 for being disorderly in the barracks.  

	d.  He accepted NJP, Article 15 of the UCMJ on 9 June 1969 for being disorderly in 
camp.  



	e.  He accepted NJP, Article 15 of the UCMJ on 17 February 1971 for:

*	through neglect, damaged a door and window, causing damage in the sum of 
approximately $40
*	wrongfully appropriated property of the U.S. Government, a bed, folding steal 
and a wardrobe; He received a forfeiture of $80.

	f.  He accepted NJP, Article 15 of the UCMJ on 31 August 1967 for:

*	being derelict in the performance of his duties in that he negligently failed to 
secure a location prior to eating chow
*	failing to obey a lawful order

	g.  He accepted NJP, Article 15 of the UCMJ on 27 December 1971 for being absent 
without leave from 13 December 1971 to 24 December 1971.  

	h.  On 27 December 1971, the applicant's immediate commander notified him of his 
intent to initiate separation action against him for unsuitability and apathy in accordance 
with Army Regulation (AR) 635-212 (Personnel Separations – Discharge Unfitness and 
Unsuitability), paragraph 6b (3) in effect at the time.  

	i.  On 27 December 1971, the applicant acknowledged receipt of the commander's 
intent to separate him.  He waived legal counsel and elected not to submit a statement 
on his own behalf.  He acknowledged he could expect to encounter substantial 
prejudice in civilian life if a general discharge under honorable conditions were issued to 
him.

	j.  Subsequent to this acknowledgement, his immediate commander initiated 
separation action against him for unsuitability in accordance with AR 635-212.  The 
chain of command recommendations are not available for the Board to review.

	k.  On 29 December 1971, the separation authority approved the applicant's 
discharge under the provisions of AR 635-212, paragraph 6b (3) and directed the 
issuance of a General Discharge Certificate.



	l.  He was discharged from active duty on 25 January 1972.  His DD Form 214 
(Armed Forces of the United States Report of Transfer or Discharge) shows he was 
discharged for unsuitability, apathy with his service characterized as under honorable 
conditions.  He completed 2 years and 10 months of net active service.  It also shows 
he was awarded or authorized the:

*	Vietnam Service Medal
*	Vietnam Campaign Medal
*	National Defense Service Medal
*	Expert Marksmanship Qualification Badge with M-16 Rifle Bar
*	Expert Marksmanship Qualification Badge with M-14 Rifle Bar
*	Overseas Service with two bars

4.  There is no evidence the applicant applied to the ADRB for an upgrade of discharge.

5.  By regulation, action will be taken to separate an individual for unsuitability and 
apathy, a lack of interest, defective attitude and inability to expend effort constructively.  
A General Discharge Certificate will normally be furnished to an individual who is 
discharged by reason of unfitness AR 635-212.

6.  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 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 after as pattern of misconduct 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) 635-200, (Personnel Separations – Enlisted Personnel), in 
effect at the time, provides for separation of enlisted personnel.  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 for the member’s age, length of service, grade, 
and general aptitude.

3.  Army Regulation (AR) 635-212 (Personnel Separations – Discharge Unfitness and 
Unsuitability), in effect at the time, establishes policy and provides procedures and 
guidance for the prompt elimination of enlisted personnel who are determined to be 
unfit for further military service.  Action will be taken to separate an individual for 
unsuitability and apathy, a lack of interest, defective attitude and inability to expend 
effort constructively.  A General Discharge Certificate will normally be furnished to an 
individual who is discharged by reason of unsuitability AR 635-212.

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 regarding equity, injustice or clemency determinations.  
Clemency generally refers to relief specifically granted from a criminal sentence and 
BCMRs 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 discharge, which may be 
warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated 
principles in the guidance as well as eighteen individual factors related to an applicant.  
These factors include the severity of the misconduct and the length of time since the 
misconduct.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180005043

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