ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  6 March 2020

	DOCKET NUMBER:  AR20180006131


APPLICANT REQUESTS: an upgrade of his under other than honorable conditions 
character of service.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	three character references

FACTS:

1.  The applicant did not file within the three-year period provided in Title 10, United 
States Code (USC), section 1552(b); however, the Army Board for Correction of 
Military Records (ABCMR) 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, in effect, that his characterization of service should be 
upgraded.

3.  A review of the applicant's record shows he served an honorable period of 
service in the Regular Army (RA) on from 13 June 1961 through 23 May 1964.  
During this period of active duty service:

*	the record is void of any disciplinary action
*	the applicant was promoted to specialist four (SP4)
*	he was awarded the Sharpshooter Marksmanship Qualification Badge with 
Pistol and Rifle Bars
*	he completed an overseas assignment in Germany
*	he completed 2 years, 11 months, and 11 days of total active service with no 
lost time

4.  He was transferred to the U. S. Army Reserve Control Group (Reinforcement) on 
24 May 1964.

5.  The applicant reenlisted in the RA on 31 August 1966.  His record reveals a 
disciplinary history that included:

*	four periods of being absent without leave (AWOL), totaling 137 days
*	five periods of confinement, totaling 222 days
*	three special court-martial (SPCM) convictions for being AWOL

6.  On 6 November 1969, the applicant‘s commander recommended him for 
elimination from the service under the provisions of Army Regulation 635-212 
(Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness.  The 
applicant was confined at the time of this action awaiting trial by SPCM.  His 
commander cited an interview with the applicant, his disciplinary history, as well as, 
his character and behavior disorders, as the basis for separation.  The commander 
further stated that the applicant could not be rehabilitated to become an effective 
Soldier.  He recommended the applicant receive an undesirable discharge.  

7.  The applicant's record contains a Report of Psychiatric Evaluation, dated 
19 November 1969, which shows a military physician diagnosed the applicant with 
inadequate personality disorder, manifested by an inability to adjust to cultural and 
social demands.  He stated the applicant was mentally responsible, able to 
distinguish right from wrong and to adhere to the right, and had the mental capacity 
to understand and participate in board proceedings.

8.  On 5 December 1969, the applicant was advised of his right to present his case 
before a board of officers.  He waived all rights and elected not to submit statements 
on his own behalf or be represented by counsel.  In addition, he acknowledged that 
he understood that he may expect to encounter substantial prejudice in civilian life if 
he received a general discharge under honorable conditions; and that he may be 
ineligible for many or all benefits as a veteran under both Federal and State laws, in 
the event he received an undesirable discharge.

9.  On 11 December 1969, the applicant's intermediate commander concurred with 
the recommendation.  The record is void of documentation showing his discharge 
was approved by the appropriate authority; however, his intermediate commander 
indicated that all the applicant's charges would be dropped upon approval of his 
discharge.

10.  The applicant was discharged in accordance with Army Regulation 635-212 for 
unfitness on 8 January 1970.  His service was characterized as under conditions 
other than honorable.  He completed 2 years, 4 months, and 14 days of net service 
for the period with 359 days of lost time.

11.  The applicant provides three character references written by his spouse, his 
daughter, and a friend/coworker.  These letters were written in response to the 
termination of the applicant's Veteran's Administration Pension and attest to the 
applicant's work ethic, selflessness, loyalty, commitment, and dedication to his 
family, employer, and community.  They all request reinstatement of the applicant's 
pension based on his post service achievements and his period of honorable 
service.

12.  Regulatory guidance, in effect at the time, provided that an individual was 
subject to separation for unfitness for various reasons to include frequent incidents 
of a discreditable nature with civil or military authorities.  When separation for 
unfitness was warranted an undesirable discharge was normally considered 
appropriate.

13.  The applicant provided three character references as evidence.  The Board 
should consider these three character references in accordance with the published 
equity, injustice, or clemency determination guidance.


BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records and published DoD guidance for consideration of discharge 
upgrade requests.  The Board considered the applicant’s statement, his record of 
service, the frequency and nature of his misconduct, multiple courts-martial 
convictions, a Report of Psychiatric Evaluation and the reason for his separation.  
The Board found insufficient evidence of in-service mitigation to overcome the 
misconduct.  The Board considered the applicant provided letters of reference, but 
found them insufficient to support a clemency determination.  Based on a 
preponderance of evidence, the Board determined that the character of service the 
applicant received upon separation was not in error or unjust.

2.  After reviewing the application and all supporting documents, the Board found 
that relief was not warranted.

?
BOARD VOTE:

Mbr 1	   Mbr 2	Mbr 3

:	   :	:	GRANT FULL RELIEF

:	   :	:	GRANT PARTIAL RELIEF

:	   :	:	GRANT FORMAL HEARING

:	   :	:	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 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) set forth the basic authority for the elimination of enlisted 
personnel for unfitness and unsuitability.  Paragraph 6 of the regulation provided that 
an individual was subject to separation for unfitness when one or more of the 
following conditions existed:  frequent incidents of a discreditable nature with civil or 
military authorities; sexual perversion including but not limited to lewd and lascivious 
acts, indecent exposure, indecent acts with or assault on a child; drug addiction or 
the unauthorized use or possession of habit-forming drugs or marijuana; an 
established pattern of shirking; and an established pattern of dishonorable failure to 
pay just debts or to contribute adequate support to dependents (including failure to 
comply with orders, decrees or judgments).  When separation for unfitness was 
warranted an undesirable discharge was normally considered appropriate.

3.  AR 635-200 (Enlisted Separations) provides in:

	a.  Paragraph 3-7a, an honorable discharge is a separation with honor and 
entitles the recipient to benefits provided by law.  The honorable characterization is 
appropriate when the quality of the member'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.  Paragraph 3-7b, a general discharge is a separation from the Army under 
honorable conditions.  When authorized, it is issued to a Soldier whose military 
record is satisfactory but not sufficiently meritorious to warrant an honorable 
discharge.

4.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of 
military records by the Secretary of the Army acting through the ABCMR.  The 
ABCMR begins its consideration of each case with the presumption of administrative 
regularity.  The applicant has the burden of proving an error or injustice by a 
preponderance of the evidence.

5.  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.  

     a.  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 on the basis of 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.  
     b.  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)	 AR20180005946
	
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