IN THE CASE OF: BOARD DATE: 27 February 2020 DOCKET NUMBER: AR20180008460 APPLICANT REQUESTS: The applicant requests an upgrade of his undesirable, under other than honorable conditions (UOTHC) discharge to a general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100000982 on 8 July 2010. 2. The applicant states he was promised when he signed his discharge paperwork, that if he did not get into any trouble his undesirable discharge would be changed to a general discharge after a certain time period. He was very young and afraid that he would have to go back to a violent war so he went absent without leave (AWOL) on several occasions. 3. On 13 September 1967, at the age of 17 years old, he enlisted in the Regular Army for a term of 3 years. After completing his initial entry training, he was assigned to an overseas assignment in Korea. 4. The applicant’s record is void of a separation packet. His record shows: a. On 28 December 1968, he accepted nonjudicial punishment (NJP) for disobeying a lawful order issued by a general regulation. b. On 5 March 1969, he was convicted by special court-martial for one specification of wrongfully having in his possession 14.20 grams and a trace, more or less of marijuana. (1) He was sentenced to confinement at hard labor for 4 months, forfeiture of $73.00 for per month for 4 months, and reduction to Private E-1/ (PV1). (2) On 10 March 1969, the sentence was approved and ordered executed; however, the sentence to confinement was suspended for four months. On 2 July 1969, the sentence was vacated. c. On 23 July 1969, he was convicted by special court-martial for one specification of being AWOL from 2 June 1969 and remaining absent until 19 June 1969. (1). He was sentenced to confinement at hard labor for 6 months and forfeiture of $80.00 per month for 6 months. On 30 July 1969, the sentence was approved and ordered executed. (2) On 19 August 1969, the unexecuted portion of the sentence to forfeiture was suspended until 2 October 1969. (3) On 22 September 1969, all unexecuted portions of the applicant’s sentence to confinement and forfeiture were remitted. d. On 21 July 1970, he was convicted by special court-martial on four specifications of being AWOL: from 1 October 1969 until 17 November 1969, from 7 December 1969 until 6 February 1970, from 6 March 1970 until 1 May 1970, and from 6 June 1970 until 19 June 1970. He was sentenced to confinement at hard labor for 4 months, and forfeiture of $60.00 per month for 6 months. e. His record is void of a medical examination and/or a mental status evaluation. However, on 24 August 1970, the applicant completed a DA form 3082-R (Statement of Medical Condition) indicating that he underwent a separation medical examination more than three working days prior to his departure from place of separation and there had been no change in his medical condition. f. His DA Form 20 (Enlisted Qualification Record) shows his conduct and efficiency was rated as ?excellent? from 19 September 1967 until 21 March 1969; ?good? from 6 August 1969 to 12 October 1969; and ?unsatisfactory? from 3 July 1970 to 21 July 1970. All other periods of service are void of any entries regarding his conduct and efficiency. g. On 26 August 1970, the applicant acknowledged that he received a copy of the board proceedings initiated against him under the provisions of AR 635-212 (Personnel Separations –– Discharge Unfitness and Unsuitability). h. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), shows on 26 August 1970, he was discharged under Army Regulation 635- 212, an SPN (separation program number), 386 (unfitness––an established pattern for shirking), his service was characterized as under other than honorable conditions, and he completed 2 years and 9 days of net service this period. The form also shows: * He was awarded or authorized: * National Defense Service Medal * Armed Forces Expeditionary Medal (Korea) * Non Pay Periods Time Lost, 335 days lost under Title 10, U.S. Code, section 972: * 2 June 1969 to 18 June 1979 (AWOL) * 2 July 1969 to 16 November 1969 (Confinement/AWOL) * 7 December 1969 to 5 February 1969 (AWOL) * 6 March 1970 to 30 April 1969 (AWOL) * 6 June 1970 to 18 June 1970 (AWOL) * 6 July 1970 to 25 July 1970 (Confinement) * He separated on temporary FDRF [Financial Data Record File?] 5. On 8 July 2010, the ABCMR denied his petition for an upgrade of his undesirable discharge; determining the evidence presented did not demonstrate the existence of a probable error or injustice. 6. The applicant states he was promised that his undesirable discharge would be changed to a general under honorable conditions discharge. He was very young and afraid that he would have to go back to a violent war so he went absent without leave (AWOL) on several occasions. His record shows he enlisted at the age of 17 years old, he accepted 1 NJP, he was convicted by special court-martial on 3 occasions, and he had 335 days lost due to AWOL and confinement. He served 2 years and 9 days of his 3 years contractual obligation. 7. The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits an application to either the Army Discharge Review Board or the ABCMR requesting change in discharge. Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable. The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge. 8. AR 635-212 provided that members involved in an established pattern for shirking were subject to separation for unfitness. An undesirable discharge was normally considered appropriate unless the particular circumstances warranted otherwise. 9. AR 635-5 (Personnel Separation –– Separation Documents), states SPN 386 is designated for the Authority AR 635-212 and the reason of unfitness –– an established pattern for shirking. 10. 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 guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, 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, and the character and reason for his separation. The Board noted the facts presented above. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. 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. 2. The Board recommends making the administrative corrections shown below in the ADMINISTRATIVE NOTE(S). 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 26 August 1970, is missing an important entry that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entry to item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized): Korea Defense Service Medal. REFERENCES: 1. AR 635-212 (Personnel Separations –– Discharge Unfitness and Unsuitability), in effect at the time, set forth the policy for administrative separation for Soldiers due to unfitness. It provided that Soldiers would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted otherwise. 2. AR 635-200 (Active Duty Enlisted Administrative Separations) provides for the separation of enlisted personnel, it provides: a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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. b. 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. 3. AR 635-5 (Personnel Separation –– Separation Documents), in effect at the time, prescribed the separation documents that will be furnished each individual who is separated from the Army. It states SPN 386 is designated for the authority, AR 635-212 and the reason, unfitness –– an established pattern for shirking. 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. 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 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. 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) AR20180008460 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180008460 6 ABCMR Record of Proceedings (cont) AR20180008460 5