ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 September 2019 DOCKET NUMBER: AR20180010087 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Resume * Undesirable Discharge Certificate 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, in effect, he enlisted in the U.S. Army to learn how to take on responsibility and to raise a new family. He takes full responsibility for his immature and defiant behavior, to include his refusal to listen to superiors or authority. He is deeply ashamed of his actions and attitude he had during his time in the service. He would like the opportunity to present additional details regarding how his life has evolved over the 44 years, since his separation. He is a hard worker that has made a positive impression on everyone he came in contact with. 3. The applicant provides a copy of his resume, which details his education and employment history. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 25 September 1972. b. He accepted nonjudicial punishment on/for: * 6 June 1973, for being absent without leave (AWOL) from 18 May 1973 to 26 May 1973 * 11 October 1973, for violating a lawful general regulation, unlawfully concealing property, and for stealing property; his punishment included reduction to private/E-2 * 12 October 1973, for violating a lawful general regulation on two occasions * 23 January 1974, for wrongfully appropriating government property; his punishment consisted of reduction to private (PV1)/E-1 c. On 23 January 1974, his immediate commander notified him of his intent to initiate separation proceedings against her under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Separations), Chapter 13 for unfitness. The commander advised him of his rights to counsel, and provided him an opportunity to submit statements on his behalf. d. On 28 January 1974, the applicant acknowledged receipt of notification from his commander, waived his right to be represented by counsel and consideration of his case to be heard by an administrative separation board. He did not provide a statement on his behalf. e. Following this acknowledgement, the immediate commander initiated separation action against the applicant in accordance with chapter 13 of AR 635-200 for unfitness. the commander cited the reason as the applicant's frequent incidents of a discreditable nature with civil or military authorities. He added that since his arrival in the company, the applicant has continually been involved in infractions which have brought not only discredit to himself but the U.S. Army as well. These incidents seem to gradually increase in severity. The chain of command recommended approval. f. Consistent with the chain of command recommendations, the separation authority approved his separation on 5 February 1974 and directed the issuance of an Undesirable Discharge Certificate. g. The applicant was discharged on 20 February 1974 under the provisions of AR 635-200, Chapter 13, paragraph 13-5a, separation program designator (SPD) 28B, unfitness. His DD Form 214 shows he completed 1 year, 4 months and 18 days of active service. 5. There is no evidence that the applicant applied to the Army Discharge Review Board for an update of his discharge. 6. 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 or rehabilitation is impracticable or he is not amenable to rehabilitation measures. 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. 7. 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: 1. After reviewing the application and all supporting documents, the Board determined relief was partially warranted. Board members felt a. His records reveal a history of misconduct/AWOL. He was provided counseling and/or opportunities for rehabilitation by various members of his chain of command, but appears to have failed to respond constructively. His separation action was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights. His discharge proceedings were conducted in accordance with applicable law and regulations at the time and the character of his service is commensurate with his overall record of military service. The reason for discharge and the characterization of service were both proper and equitable. b. In reaching its determination, the Board did consider the applicant's petition and his service record in accordance with the FY2018 DOD published equity, injustice, or clemency determination guidance. Based on his record of indiscipline, Board members felt his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel required for an honorable but met the standards for a general discharge. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing him a new DD Form 214 to show he was discharged with an under honorable conditions (general) character of service. 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 Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states 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 or current period of service with due consideration for the member’s age, length of service, grade and general aptitude. b. Paragraph 1-9e (General Discharge) is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security. c. Paragraph 1-9f (Undesirable Discharge) states an undesirable discharge is an administrative separation from the Service under conditions other than honorable. It may be issued for unfitness, misconduct, homosexuality, or for security reasons. d. Chapter 13 of that regulation provides 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, except that an honorable or general discharge certificate may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstance in his case. 3. 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 (BCMNRs) 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 court-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 on the basis of 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. ABCMR Record of Proceedings (cont) AR20180010087 5 1