ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  13 September 2019

	DOCKET NUMBER:  AR20180008953


APPLICANT REQUESTS: reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the review of Discharge or Dismissal from the Armed Forces of the United States)
* DD Form 214 ( Armed Forces of the United States Report of Transfer or Discharge)
* U.S. Department of the Treasury Letter

FACT

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 AR20040002901 on 7 April 2005.

2.  The applicant states he would like an upgrade of his under other than honorable discharge for veteran’s administration attention and rehabilitation program.  His father’s death in 1969, left his mother in hard times.  She needed him and he was her only working son to help her.  He voluntarily enlisted and thought he was getting an honorable discharge.

3.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 8 May 1970.

	b.  He accepted non-judicial punishment, under the provisions of Article 15, Uniform Code of Military Justice, for the following offense on 20 July 1970, for departing his unit in an absent without leave status on 25 May 1970 and did not return to military control until 14 July 1970 

	c.  On 7 January 1971, he underwent a mental status evaluation and was determined to be able to distinguish right from wrong and to adhere to the right.  The examining official stated the applicant had a strong dislike for the Army, that he could not adjust to the Army life and that he had little desire to excel or better himself.  The examiner also mentioned the applicant had a negative attitude and no motivation and was unlikely to become a productive soldier.

	d.  His record is void of the commanders notification of intent to separate him under the provisions of AR (Army Regulation) 635-212 and the applicant’s acknowledgement of separation, however, on 18 January 1971, his immediate commander initiated action to separate the applicant under the provisions of AR 635-212.  The discharge was recommended based upon habits and traits of character manifested by frequent incidents of a discreditable nature with civil and or military authorities were subject to separation for unfitness.  The chain of command recommended approval.

	e.  On 26 January 1971, the separation authority approved the discharge under the provisions of AR 635-212 with the issuance of an Undesirable Discharge Certificate.

	f.  The applicant was discharged on 2 February 1971.  His DD Form 214 shows he was discharged by reason of AR 635-212.  He was assigned Separation Program Number 28B (Unfitness) and his characterization of service was under conditions other than honorable.  He completed 2 months, and 2 days of active service with 145 days of lost time.

4.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his character of service.  After considering the evidence, the ADRB denied his request 7 April 2005.

5.  By regulation, action will be taken to separation an individual for unsuitability when it is clearly established that it is unlikely that he will develop sufficiently to participate in further military training and/or become a satisfactory soldier, and he meets retention

6.  The Board should 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 extremely short term of honorable service completed prior to 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 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 to amend the decision of the ABCMR set forth in Docket Number AR20040002901 on 7 April 2005.

	 
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.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military record by the Secretary of the Army acting through the ABCMR.  .The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is what the Army did was correct.  It is not an investigative agency.  The applicant has the burden of providing an error or injustice by a preponderance of the evidence.

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 (Active Duty Enlisted Separations), currently in effect, sets forth the basic policy for separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier’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 (General Discharge) states 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 (Army Board for Correction of Military Records (ABCMR)) states ABCMR members will review all applications that are properly before them to determine the existence of an error. The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

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.  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)	 AR20180008953


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