ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 August 2019 DOCKET NUMBER: AR20180007795 APPLICANT REQUESTS: an upgrade to 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) * self-authored statement * character reference from his Pastor * character reference from XX * character reference from XX 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, based on the facts, he feels that he has paid his dues and wants to point out how successful he has been as a citizen of his community by providing several character references from his Pastor and friends. He was young at the time and it was his first time away from home and facing a deadly war, which left him in fear for his life. 3. The applicant provides: a. A detailed self-authored statement which is attached describing his family background, the incident and his military and personal experiences. b. A character reference from his lifelong friend from grade school, now his Pastor, which states that he sat with the applicant and he reviewed, in detail, his military experiences, challenges and his discharge status. He is empathetic to the applicant concerns and as his Pastor, he is asking the Board to honor the applicant’s request for an upgrade. c. A character reference from XX, which states she has known the applicant for over 25 years and he is a friend of the family. Their children played together and to this day, they still remain friends. When he is called to help out, regardless of the situation, he is usually the first to want to get involved. He is always dependable and responsible in whatever is asked of him. She is proud to say she feel like a part of his family and he is someone who she is proud to know. He has worked tirelessly as an employee of Webster University until his retirement. d. A character reference from XX which states she first met the applicant when she was 10 years old. He has been her mother’s friend for over 30 years. She practically grew up around him during the most important times in her life and she always spent the holidays and special events at his house. He has always treated her like she was his daughter. He has always been a person that she could look up to and talk to when problems arise. My uncle, as I have grown to know, has always been a dependable, responsible, honest and courteous person. 4. A review of the applicant’s service record shows: a. He was inducted into the Army of the United States on 21 February 1968. b. On 4 April 1968, he accepted non-judicial punishment for departing his unit in an absent without leave (AWOL) status on 21 March 1968 and did not return to military control until 4 April 1968. c. On 11 June 1968, he was convicted by Summary Court-Martial Order Number 30 of two specifications of being disrespectful towards a superior noncommissioned officer on 3 June 1968. His sentence was to be confined at hard labor for one month and to forfeit $62.00 per month for one month. d. He served overseas in Vietnam from 21 December 1968 until 11 March 1969. e. On 20 June 1969, he was convicted by Special Court-Martial Order Number 779J of one specification of departing his unit in an AWOL status on 27 March 1969 and remained absent until 27 May 1969. His sentence was forfeiture of $62.12 pay for 2 months and restriction to Special Processing Company for 1 month. f. On 29 January 1970, after being dropped from the rolls, his status changed from AWOL to “assigned”. g. His record is void of the commander’s notification of intent to initiate separation under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), but it does show the applicant signed the acknowledgement of receipt. h. Having been advised by counsel, the applicant acknowledged the basis for contemplated action to separate him for unfitness under AR 635-212. He waived consideration of his case by a board of officers and a personal appearance before a board of officers. He elected to submit a statement in his own behalf and waived representation by counsel. 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 * He elected not to submit a statement on his behalf i. On 7 April 1970, his immediate commander initiated action to separate the applicant from the Army under the provisions of AR 635-212. The discharge was recommended due to repeated commissions of two AWOL offenses, resistance to authority and regulations, and a pattern of behavior, which renders him a complete loss to the service. j. On 18 April 1970, the separation authority approved the discharge under the provisions of AR 635-212 with the issuance of an undesirable discharge certificate. k. The applicant was discharged on 24 April 1970. His DD Form 214 shows he was discharged under the provisions of AR 635-212, unsuitability and his characterization of service was under conditions other than honorable. He completed 1 year, 8 months and 2 days of net service with 216 days of lost time. He was awarded or authorized the: * National Defense Service Medal * Marksmanship Qualification Badge with Rifle Bar (M-16) 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that Board's 15-year statute of limitations. 6. By regulation, action will be taken to separation 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. An individual separated by reason of unfitness will be furnished an Undesirable Discharge Certificate. 7. 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 a pattern of misconduct, which included multiple lengthy AWOL offenses, 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) 635-212 (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. ABCMR Record of Proceedings (cont) AR20180007795 5 1