ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  24 July 2019

	DOCKET NUMBER:  AR20180009571


APPLICANT REQUESTS: 

* an upgrade of his general discharge to an honorable discharge
* a personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DD Form 215 (Correction to DD Form 214)
* Radio Communications Diploma
* National Guard Bureau (NGB) Form 22-1 (Request/Decline Copy of NGB Form 22 (Report of Separation and Record of Service), Narrative Reason for Separation)
* NGB Form 22
* two Certificates of Attendance
* Coquille Police Department Training Record
* Statement of Service (Retirement)
* Law Enforcement Officers Completion Certificate
* Oregon Breath Alcohol Analysis Permit
* Law Enforcement Basic Training Course Certificate
* DOD Military Service Information
* seven support letters

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 is requesting clemency by submitting evidence of his post-service conduct and contributions to society that he believes supports an upgrade or correction from a general, under honorable conditions, to a full honorable discharge.  He believes his post-service conduct and contributions support a decision of clemency.  He was unaware of the clemency option until 2018.  He is also requesting a personal appearance before the Board.  

3.  The applicant provides the following:

* DD Form 214 for the period ending on 26 October 1967
* DD Form 215, dated 1 April 1970, amending items 15 (Reenlistment (RE) Code) and 30 (Remarks) of his DD Form 214 (Remarks) to show the entries “RE-3” and “Table 2-5, Army Regulation (AR) 601-210 applies”
* Radio Communications Diploma, dated 20 April 1976
* NGB Form 22-1, dated 17 June 1976, wherein he requested a copy of his NGB Form 22 and separation explanation document
* NGB Form 22 showing he served in the Oregon Army National Guard from 18 June 1977 until his honorable discharge on 17 June 1979
* Coquille Police Academy Certificate of Attendance, 29 August 1980
* Statement of Service (Retirement), dated 21 September 1981, showing he completed 3 years, 4 months and 15 days of creditable service for retirement between 1967 to 1980
* Coquille Police Department Training Record listing his completed courses from August 1980 to February 1983
* Law Enforcement Officers Completion Certificate, dated 6 May 1983
* Oregon Breath Alcohol Analysis Permit, dated 1 July 1983
* Juvenile Information System Certificate of Attendance, dated 12 October 1983
* Law Enforcement Basic Training Course Certificate, dated 14 March 1984
* DOD Military Service Information, dated 29 March 2015
* seven support letters, dated between 25 January 1977 to 16 May 2018, wherein the individuals attested the applicant was a dedicated and hardworking young man, commended him for licensed police work, and supported his request for an upgrade of his discharge

4.  Review of the applicant’s military record shows:

	a.  He enlisted in the Regular Army on 12 June 1967.

	b.  A Report of Psychiatric Evaluation, dated 11 September 1967, shows the Assistant Chief, Mental Hygiene Consultation Branch, Fort Lee, VA, diagnosed the applicant with a schizoid personality manifested by eccentricity, withdrawal, autistic thinking, and avoidance of relationships with others; existed prior to service.  He stated:

* the diagnosis fell within the purvue of AR 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability)
* there was no mental defect sufficient to warrant separation through medical channels and no apparent medical contraindication for administrative separation
* the applicant was mentally responsible both to distinguish right from wrong and to adhere to the right
* the applicant was clear for any administrative decision, including separation, which command deemed appropriate

	c.  On 25 September 1967, the Company Commander, Student Enlisted, U.S. Army Quartermaster School Brigade, Fort Lee, notified the applicant of the recommendation for the applicant’s separation under the provisions of AR 635-212, based on the fact that he was totally unfit for military service demonstrated by his extreme nervous condition, lack of ability to make friends easily, and the tendency for self-destruction that he demonstrated on 7 September 1967, by the taking of an overdose of tranquilizers.  He advised the applicant of his rights.

	d.  On 25 September 1967, the applicant acknowledged receipt of the proposed separation action and submitted a statement that he had not received nonjudicial punishment during his stay in the service.

	e.  On 26 September 1967, after consulting with legal counsel, the applicant acknowledged:  

* he was advised by counsel of the basis for contemplated action for separation for unsuitability under AR 635-212
* he waived consideration of his case by a board of officers
* he waived personal appearance before a board of officers
* he did not submit statements on his own behalf
* he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions discharge is issued
* he may, as a result of issuance of an undesirable discharge, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and may expect to encounter substantial prejudice in civilian life

	f.  On 28 September 1967, the Company Commander, Student Enlisted, U.S. Army Quartermaster School Brigade, recommended the applicant’s separation for unsuitability, with an honorable discharge.

	g.  On 16 October 1967, the staff judge advocate found the applicant’s case legally sufficient.

	h.  On 23 October 1967, the Battalion Commander, U.S. Army Quartermaster School Brigade, recommended approval for a general discharge.

	i.  On 24 October 1967, the separation approval authority approved the applicant’s discharge under provisions of AR 635-212, for unsuitability, and directed the issuance of a General Discharge Certificate.

	j.  Accordingly, he was discharged from active duty, in pay grade E-1, on 26 October 1967.  His DD Form 214 shows he completed 4 months and 15 days of net active service.  His service was characterized as under honorable conditions (general).  The form also shows he was awarded or authorized the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

	k.  On 23 October 2012, the ABCMR denied his request for correction of his DD Form 214 to show he was discharged in pay grade E-2 and his last duty assignment was Company U, Quartermaster School Brigade, 1st Army, Fort Lee.

5.  By regulation (AR 635-212), action will be taken to separate an individual for unsuitability (inaptitude) when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort is unlikely to succeed.  

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.

7.  By regulation (AR 15-185), 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.

BOARD DISCUSSION:

The applicant's request for a personal appearance hearing was carefully considered.  In this case, the evidence of record was sufficient to render a fair and equitable decision.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

After reviewing the application and all supporting documents, the Board found the relief was not warranted.  The applicant’s contentions, letters of support, and post-service achievements were carefully considered.  The applicant was separated with less than six months of service for unsuitability.  Regulatory guidance shows he should have been separated with an uncharacterized character of service meaning he was not in the Army long enough for his character of service to be rated as honorable or otherwise.  The Board will not make the applicant worse off by correcting his record in which the correction would remove any entitlements received by having a General discharge; however, the Board agreed his unsatisfactory performance during that short period of time shows he could not meet the standards of acceptable conduct and performance of duty for Army personnel.

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, established policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.  Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:  inaptitude; character and behavior disorders; apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); alcoholism; or enuresis.

3.  AR 635-200 (Personnel Separations -Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 1-9d of the regulation stated an honorable discharge was issued conditional upon proper military behavior and the proficient performance of duty.  Where a member had served faithfully and performed to the best of his ability, and has been cooperative and conscientious in doing his assigned tasks, he could be furnished an honorable discharge.

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 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 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.

5.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records 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 that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180009571


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