ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: gust 2019 DOCKET NUMBER: AR20180008295 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge to a general discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 he believe that he should have been afforded a general discharge under honorable conditions, he has not been provided a reason for his discharge and feels it was unjust. 3. A review of the applicant’s service shows: a. Having had prior service in the Army Reserve, he enlisted in the Regular Army on 2 July 1970. b. He accepted nonjudicial punishment on: * 7 May 1971, for being absent without leave on 3 May 1971 * 10 September 1971, for failing to obey orders * 6 November 1971, for failing to go the appointed place of duty, his punishment in part, reduction to E-3, appealed on 15 November 1971 * 31 December 1971, the punishment imposed in part, reduction to E-2 c. On 4 January 1972, the immediate commander submitted and Certificate of Unsuitability for Reenlistment on the applicant to bar from reenlistment for a record of habitual misconduct, bad attitude, he did not get along with his superiors, and insubordinate. He received four article 15’s and he did not adhere to standards. d. On 3 January 1972, the applicant's immediate commander notified the applicant of his intent to separate him under the provisions of Army Regulation (AR) 635-212 (Discharge – Unfitness and Unsuitability), for unfitness. He informed him that the separation could result with an undesirable discharge certificate. He advised him of his rights: to present his case before a board of officers convened to be represented by counsel, military counsel of your choice, provided such counsel is reasonably available, or to obtain civilian counsel his own expense to submit a statements in his own behalf to waive the above rights in writing e. On 4 January 1972, his immediate commander initiated the recommendation to separate him under the provisions of AR 635-212, paragraph 6a (1) for unfitness, frequent incidents of a discreditable nature with civil or military authorities. He had bad attitude, he did not get along with superiors, and he received four article 15’s, and a history of indebtedness, and disobeyed direct orders. The applicant had been assigned various duty assignments within two different units in the Battalion commensurate with his training, ability and motivation. He had served under different superior officers and noncommissioned officers, in each instance his performance of duty was unsatisfactory. He recommended an undesirable discharge. f. The applicant underwent an examination on 5 January 1972, the examiner qualified him for separation. g. On 5 January 1972, he acknowledged received of the notification of elimination action being initiated against him. h. He underwent a mental evaluation on 6 January 1972, the examiner determined that he had no significant mental illness. i. On 14 January 1972 and 17 January 1972, his intermediate commanders recommended to separate him under the provisions of AR 635-212, for frequent acts of discreditable nature. He received nonjudicial punishment on four occasions and required constant counseling and supervision. j. Special Orders Number 020 Extract, dated 25 January 1972, shows that an elimination board was appointed to consider his elimination from the military service under the provisions of AR 635-212, for unfitness. k. The applicant appeared before a board of officers with qualified counsel. The Board convened on 11 February 1972, its findings that the applicant was undesirable for further retention in the military service because of habits and traits of character manifested by frequent acts of discreditable nature with military authorities. His rehabilitation was not deemed possible. The Board recommended that he be discharged from the service because of unfitness with issuance of an undesirable discharge certificate. l. The separation authority approved the request for discharge under the provisions of AR 635-212, for unfitness on 22 February 1972, he directed an undesirable discharge certificate be issued, and the applicant be reduced to lowest grade of Private/E-1. m. The applicant was discharged from active duty on 29 February 1972 under the provisions of AR 635-212 for unfitness, SPD 28B - Unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities. His service characterization is under other than honorable conditions. His DD Form 214 shows he completed 1 year, 7 months and 16 days of active service this period and no lost time. 4. The Army Discharge Review Board (ADRB), by letter, on 6 November 1973, to the applicant in response to his request for correction of his military record. The ADRB stated that after careful review of his application, military records and all other available evidence, the ADRB determined that he was properly and equitably discharged and denied his request to change his character and/or reason of his discharge. 5. Army Regulation, SPN 28B - Unfitness, is an established pattern for showing dishonorable failure to contribute adequate support to dependents or failure to comply with order, decrees, or judgment of a civil court concerning support of dependents. 6. By regulation 635-212, paragraph 4a states that 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 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. 7. The Board can consider the applicants 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. Based upon the short term of honorable service completed prior to a pattern of misconduct, which included a lengthy period of AWOL, 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 APPLICATX X X DENY APPLICATION ENDATION: 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 s ecorded 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. AR 635-212 (Discharge – Unfitness and Unsuitability), in effect at the time provided procedures and guidance for eliminating enlisted personnel who are found to be unfit or unsuitable for further military service. a. Paragraph 4a states that 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 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. b. Paragraph 6a, states an individual is subject to separation under the provisions of this regulation when one or more of the following conditions exist for unfitness: 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 upon a child, or other indecent acts or offenses drugs addiction or the unauthorized use or possession of habit-forming drugs or marijuana an established pattern for shirking. an established pattern showing dishonorable failure to pay just debts an established pattern showing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgments of a civil court concerning of dependents. 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 principr 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 Record08000895 1