ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 July 2019 DOCKET NUMBER: AR20180006051 APPLICANT REQUESTS: an upgrade to his general under 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. 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 when he entered the Army, his fiancé was pregnant and thoughts of her alone made him depressed. The following year, he had another child and his family situation worsened. He regrets the decisions he made while in the military, but was under constant pressure to be home with his family. 3. A review of the applicant’s service record shows: a. He was inducted into the Army of the United States on 26 February 1969. b. According to the DD Form 458 (Charge Sheet), summary court-martial charges were preferred against the applicant on 14 May 1969 for two specifications of being absent without leave from 6 April 1969 to 8 April 1969 and 19 April 1969 to 25 April 1969. The court-sentenced him to $20 forfeiture of pay. c. According to the DD Form 458 (Charge Sheet), summary court-martial charges were preferred against the applicant on 24 October 1969 for two specifications of being absent without leave from 19 May 1969 to 27 May 1969 and 7 June 1969 to 30 September 1969. The court-sentenced him to hard labor without confinement for 3 months and reduction to the grade of E1. d. A board of officers convened on 20 July 1970 at Fort Dix, NJ to determine if the applicant should be eliminated from the service due to unfitness. The board carefully considered the evidence and the convening authority directed that the applicant be retained in the service. e. According to the DD Form 458 (Charge Sheet), summary court-martial charges were preferred against the applicant on 3 September 1971 for one specification of being absent without leave from 23 September 1970 to 30 June 1971. The court-sentenced him to confinement at hard labor for 5 months. f. He accepted nonjudicial punishment, Uniform Code of Military Justice (UCMJ), Article 15, on 23 May 1972 for: * two specifications of being absent from his place of duty, the mess hall * one specification of using disrespectful language toward his superior non-commissioned officer g. On 20 July 1972, the applicant’s immediate commander notified him of his intent to initiate separation action against him in accordance with the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 5-37, in effect at the time, for failure to demonstrate adequate potential for promotion to the grade of E3. h. The chain of command recommended approval and a general discharge under honorable conditions on 21 July 1972. i. On 2 August 1972, his immediate commander initiated a Bar to Reenlistment Certificate citing the applicant’s record of court-martial convictions and nonjudicial punishment, Article 15s. He noted the applicant was counseled about his duty performance numerous times, but his performance did not improve. The bar was approved on 14 August 1972. j. While pending separation action, on 10 August 1972, the applicant accepted nonjudicial, UCMJ Article 15 for wrongful possession of 2.62 grams of marijuana in the hashish form. He received forfeiture of $70 pay and 14 days extra duty. k. Consistent with the chain of command’s recommendation, on 13 September 1972, the separation authority approved the separation under the provisions of AR 635-200, Chapter 5-37 for failure to demonstrate promotion potential. He directed a General Discharge under the provisions of the Qualitative Management Program. l. He was discharged from active service on 5 October 1972. His DD Form 214 shows he was discharged with an under honorable conditions characterization of service. He completed 1 year, 6 months and 6 days of net service with 764 days of lost time. 4. There is no evidence the applicant has applied to the Army Discharge Review Board for an upgrade of his discharge. 5. By regulation (AR 635-200), personnel whose potential for continued effective service which falls below the standards required for enlisted personnel in the U.S .Army may be discharged. An honorable discharge is normally appropriate unless the individual’s conduct clearly substantiates a general discharge. 6. 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the short term of honorable service completed prior to multiple lengthy AWOL offenses, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his separation, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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 the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of 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. b. Chapter 5, paragraph 5-37 of this regulation states personnel who’s potential for continued effective service which falls below the standards required for enlisted personnel in the U.S .Army may be discharged. An honorable discharge is normally appropriate unless the individual’s conduct clearly substantiates a general discharge. 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 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. ABCMR Record of Proceedings (cont) AR20180006051 4 1