ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 26 July 2019 DOCKET NUMBER: AR20180008366 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to a general under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 299 (Application for the Review of Discharge) * VA Form 21-0966 (Intent to File a Claim for Compensation and/or Pension, or Survivors Pension and/or DIC) * VA Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative) 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 was not offered the deferment program, which he did not know existed. 3. A review of the applicant’s service records shows: a. He enlisted in the United States Army Reserve (USAR) Control Group Delayed Entry on 21 November 1972. b. He enlisted in the Regular Army (RA) on 10 January 1973. c. He accepted nonjudicial on/for: * On 20 June 1973 for failure to report to the company charge of quarters * 2 July 1973, for without authority failed to go at the time prescribed to his appointed place of duty * 20 July 1973, willfully and unlawfully altered a public record; his punishment included reduction to the grade of private (PVT)/E-1 d. On 31 July 1973, the applicant filed an appeal from the punishment that included the reduction to grade of PVT/E-1. He stated that he did not forge the sick call slip, another Soldier did. The Soldier told the applicant that he would admit to the act. e. DA form 2627-2 (Record of Appellate or Other Supplementary Actions Under Article 15, Uniform Code of Military Justice (UCMJ)), the appeal of the Article 15 was denied on 10 August 1973. f. Unit Order Number 50 dated 15 August 1973, directed the forfeiture of $50 per month for 1 month and the reduction to PVT/E-1 effective 31 July 1973 for misconduct. g. He accepted nonjudicial punishment on 25 March 1974 for two specifications of without authority failed to go at the time prescribed to his appointed place of duty. h. Unit Order Number 19 dated 28 March 1974, directed the forfeiture of $50 effective 25 March 1974 for misconduct. i. DA Form 4126-R (Bar to Enlistment/Reenlistment Certificate) dated 22 April 1974, the applicant’s unit commander recommended that he be barred from reenlistment for three Article 15s, poor conduct and performance. The applicant did not desire to submit statements in his own behalf. j. On 7 May 1974, the bar to reenlistment was approved. k. On 10 June 1974, the applicant accepted nonjudicial punishment for two specifications of without authority he failed to go at the time prescribed to his appointed place of duty. l. Special Order Number 171 dated 20 June 1974, directed the forfeiture of $150 effective 7 June 1974 for misconduct. m. On 1 July 1974, the applicant accepted nonjudicial punishment for: * without authority failed to go at the time prescribed to your appointed place of duty * with intent to deceived made an official statement that he known to be false n. On 28 June 1974, the applicant’s unit commander notified him of the intent to separate him from the service under the provisions of chapter 13 (Separation for Unfitness or Unsuitability), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel for a pattern of frequent incidents of discreditable nature against military authority and shirking. o. The complete fact and circumstances surrounding the applicant’s acknowledgement of the notification of separation are unavailable for the Board to review. p. The applicant’s unit commander initiated separation action under the provisions of paragraph 13-5a (unfitness) (1) and (4), chapter 13, AR 635-200. The document was not dated. q. Special Order Number 189 dated 8 July 1974, directed the forfeiture of $74 effective 26 June 1974 for misconduct. r. DA Form 3822-R (Report of Mental Status Evaluation) dated 17 July 1974, stated that the applicant’s condition was amenable to any form of punishment, retraining or other forms of rehabilitation. He was psychiatrically cleared for any appropriate administrative action. s. On 22 July 1974, the applicant’s battalion commander recommended approval of the discharge under the provisions of chapter 13, AR 635-200 for unfitness. t. After consultation with legal counsel the applicant acknowledged on 22 August 1974: * he waived consideration before a board of officers * he waived personal appearance before the board of officers * he waived representation by legal counsel * he may expect to encounter substantial prejudice in civilian life * he may be ineligible for many or all benefits as a veteran under both Federal and State laws * he understood that up until the date of discharge he may withdraw the waiver and request a board of officer to hear his case u. On 9 September 1974, the separation authority approved the separation under provisions of paragraph 13-5a (1), AR 635-200 for unfitness and be furnished an undesirable discharge certificate. v. He was discharged from active duty on 23 September 1974, under provisions of paragraph 13-5a (1), AR 635-200 with an under other than honorable conditions discharge. His DD Form 214 shows that he completed 1 year, 8 months, and 14 days of active service. 4. He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. On 18 March 1980, the ADRB determined his discharge was proper and equitable, and denied his request. 5. By regulation AR 635-200 provides procedures and guidance for eliminating enlisted personnel who are found to be unfit or unsuitable for further military service. A member is subject to separation under the provisions of unfitness when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. This reason will not be used if the member is in entry level status. 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. Based upon the short term of honorable service completed prior to a pattern of misconduct, as well as the failure to accept responsibility and show remorse for the events leading to his separation, 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 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 635-200 (Personnel Separations-Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 13 provides procedures and guidance for eliminating enlisted personnel who are found to be unfit or unsuitable for further military service. A member is subject to separation under the provisions of unfitness when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. This reason will not be used if the member is in entry level status. b. 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. Where a member has served faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks he may be furnished an honorable discharge. c. Paragraph 1-9e (General Discharge), states that a general discharge is a separation from the Army under honorable conditions of an individual whose military records 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. 3. Army Regulation 15-180 (Army Discharge Review Board), in effect at the time. The scope of the inquiry of the board will be to determine whether the discharge received was equitably and properly given. When the board determines in an individual case that the discharge was not equitable and properly given, it is authorized in the manner herein prescribed to direct The Adjutant General to take appropriate actions. No application for review will be granted unless received by the Department of the Army within 15 years after the date of the discharge or dismissal. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180008366 2 1