ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 August 2019 DOCKET NUMBER: AR20180008975 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge to honorable. 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 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) * DD Form 215 (Correction of DD Form 214) * Public Law 95-126 Excerpt * Letter of Support dated 17 Feb 19 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 discharged under the Department of Defense (DOD) Special Discharge Review Program (SDRP), but a second review upheld that he was entitled only to Veterans Affairs (VA) healthcare. He is requesting an upgrade that will allow him to be entitled to all VA benefits. a. He was confronted or approached by a noncommissioned officer (NCO) in Vietnam because he elected to wear an engineer’s cap, which provided better protection from the sun, rather than the required baseball cap. Although he believed he was exempt from guard duty because he did not have any training, he received guard duty as a result. In preparation for his duty he was checking his equipment and accidentally discharged his weapon. There was no one in the immediate vicinity and no one was hurt. b. He was arrested the same day and was held until his court-martial. He was given 30 days of confinement, but was returned to his unit after 28 days. He understood he would be assigned to another location besides Vietnam; however, he was reassigned to the overseas replacement unit in Oakland, CA and they were headed to Vietnam. He asked to be discharged to allow him to appeal. c. He acknowledges that he lost his temper one time, but he has served his country and although he made some mistakes, he is hopeful he can put it all behind him. He continues to serve others through his efforts on the resident advisory board, service in the community, and by assisting with a food ministry at church. He has dedicated himself to learning as much as he can to be a better person and an upgrade of his discharge would greatly improve his quality of life. 3. The applicant provides: * DD Form 214 * DD Form 215 * Public Law 95-126 excerpt which governs Veterans’ benefits entitlements denial to certain Veterans with upgraded discharges. * Reverend D.Y.P. writes a letter, dated 17 February 2019, which states the applicant is not a member, but has attended church regularly for over a year and participates in bible study. He also assist in serving those in need and has demonstrated humility, compassion, and a willingness to serve others. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 21 November 1969. b. He served in Vietnam from 7 November 1970 to 6 November 1971. c. He received nonjudicial punishment (NJP) on/for: * 16 June 1970, for failure to be at his appointed place of duty and being absent without leave (AWOL) on two separate occasions, 9 June 1970 and 10 June 1970 * 16 June 1970, for failure to obey a lawful order * 3 August 1970, for unlawfully carrying a concealed weapon (straight razor) * 25 August 1970, for failure to be at his appointed place of duty * 10 September 1970, for being AWOL from 3 September 1970 to 9 September 1970; his punishment included reduction to private/E-1 & forfeiture of $32.00 * 28 December 1970, failure to be at his appointed place of duty, being AWOL from 22 to 23 December 1970, and for failure to obey a lawful order d. On 22 December 1970, he was convicted by a special court-martial for one specification of wrongfully communicating a threat to injure the first sergeant and one specification of wrongfully and willfully discharging his firearm under circumstances such as to endanger human life. His sentence included reduction to the grade of private/E-1, confinement for three months (with a recommendation to the convening authority it be suspended), and forfeiture of $60.00 per month for three months. e. On 24 February 1971, the convening authority approved the sentence, but the execution of the portion of the sentence adjudging confinement for three months was suspended three months. f. On 5 April 1971, the approved sentence to confinement was vacated and the unexecuted portion of the sentence was duty executed. On 3 June 1971, the unexecuted portions of the sentences to confinement and forfeiture of pay were suspended until 6 July 1971. g. The applicant’s immediate commander notified the applicant he was considering the applicant for elimination from military service for unfitness, under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). He advised the applicant of his rights. 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 not to submit statements 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 * he may expect to encounter substantial prejudice in civilian life i. On 24 August 1971, his immediate commander initiated action to separate the applicant from the Army under the provisions of AR 635-212. The discharge was recommended because of his history of misconduct and failure to adapt by having received one special court-martial and five article 15’s with another pending court-martial for another AWOL. The chain of command recommended approval. j. On 8 November 1971, the separation authority approved the discharge under the provisions of AR 635-212 with the issuance of an Undesirable Discharge Certificate. k. On 11 November 1971, the applicant was discharged from the Army. His DD Form 214 (armed Forces of the United States Report of Transfer or Discharge) 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 1 year, 9 months, and 5 days of active service with 76 days of lost time. l. On 10 January 1973, the Army Discharge Review Board (ADRB) considered his request for an upgrade but determined that he was properly discharged. The ADRB denied his request for an upgrade of his discharge. m. On 25 July 1975, the ABCMR determined that insufficient evidence had been presented to show an error or an injustice in his discharge. The ABCMR denied his request. n. On 4 April 1977, the ADRB reviewed the applicant's discharge under Public Law 95-126 and a determination was made that the characterization of service was warranted under the SDOD SDRP. He was informed on 27 July 1977 that his discharge would be upgraded to general, under honorable conditions o. The applicant's original DD Form 214 was voided and he was issued a new DD Form 214 (Report of Separation from Active Duty) that reflects his under honorable conditions (general) characterization of service. p. On 24 July 1978, the ADRB re-reviewed the applicant’s discharge as required by Public Law 95-126. As a result of this review, the Board determined that the applicant did not qualify for upgrading under the new uniform standards for discharge review. Accordingly, his upgraded discharge under the DOD-SDRP was not affirmed. This did not change the upgraded discharge he previously received; but, because of the new law, he would not be able to use his discharge to qualify for VA benefits. 5. By regulation, 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. An individual separated by reason of unfitness will be furnished an Undesirable Discharge Certificate. 6. In reaching its determination, the Board can consider the applicants’ petition in his service record in accordance with published equity, injustice, or clemency determination guidance. 7. Public Law 95-126 provided in pertinent part for a “Relook Program.” All cases upgraded from under other than honorable conditions under the SDRP or the extension to PP 4313 had to be relooked and affirmed or not affirmed under uniform standards. 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 pattern of misconduct and the seriousness and dangerous nature of the offenses which led to the applicant’s separation, the Board agreed that the applicant's discharge characterization approved by the ADRB 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 (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 Administrative Separations), currently in effect, provides the policy and procedures for the 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. The Department of the Army Special Discharge Review Program (SDRP) was based on a memorandum from Secretary of Defense Brown and is often referred to as the “Carter Program.” It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary. The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case. An individual who had received a punitive discharge was not eligible for consideration under the SDRP. Absentees who returned to military control under the program were eligible for consideration after they were processed for separation. Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or were excused from completing alternate service in accordance with PP 4313 of 16 September 1974. Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law. 5. Public Law 95-126 provided in pertinent part for a “Relook Program.” All cases upgraded from under other than honorable conditions under the SDRP or the extension to PP 4313 had to be relooked and affirmed or not affirmed under uniform standards. Two of the principal features of Public Law 95-126 were: (1) the addition of 180 days of continuous unauthorized absence to other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for Veterans Administration (VA) benefits. Such absence must have been the basis for discharge under other than honorable conditions and is computed without regard to expiration term of service; and (2) prospective disqualification for receipt of VA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination was made under the published uniform standards and procedures. 6. 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) AR20180008975 6 1