ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 August 2019 DOCKET NUMBER: AR20180011308 APPLICANT REQUESTS: an upgrade of his under other than honorable condition discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 his commander’s action was unfair and unjust because he had already served his time per the special court-martial. 3. The applicant’s service records shows: a. He enlisted in the Regular Army on 5 June 1972. b. He served in Panama from 26 October 1972 to 15 April 1973. He did not receive overseas tour credit. c. On 28 March 1973, Special Court-Martial Order Number 31, shows the applicant was convicted for one specification of willfully disobeying a lawful order. His punishment consisted of reduction to private (PVT)/E-1 and forfeiture of $50.00 per month for two months. The sentence was approved and duly executed on 18 April 1973. d. On 12 July 1973, Special Court-Martial Order Number 65, shows the applicant was convicted for one specification of using disrespectful language toward his superior noncommissioned officer. His punishment consisted of confinement at hard labor and forfeiture of $75.00 per month for two months. The sentence was approved and duly executed on 10 August 1973. a. e. On 7 September 1973, Special Court-Martial Order Number 2064, suspended the forfeiture of $75.00 per month for two months until 17 October 1973, at which time, unless sooner vacated, the suspended portion of the sentence will be remitted without further action. f. On 7 December 1973, the applicant accepted nonjudicial punishment (NJP) for failure to obey a lawful order issued by the commander (unit standing operating procedures). His punishment consisted, in part, of forfeiture of $100.00 per month for one month, restriction, and extra duty. His appeal of the NJP was denied on 13 December 1973. g. The complete facts and circumstances surrounding the applicant's chapter proceedings (commander's notification and initiation, chain of command's recommendations and the separation authority's decision), are not available for the Board to review. However, his service record contains Special Orders Number 7, dated 9 January 1974 and a DD Form 214 (Report of Separation from Active Duty) that shows: (1) He was discharged as a PVT on 11 January 1974, under the provisions of chapter 13, paragraph 13-5a(1) - Unfitness, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) with an undesirable discharge. (2) He completed 1 year, 3 months and 12 days of active service, with 115 days of lost time. He was assigned Separation Processing Designator 28B (Unfitness). He was awarded or authorized the National Defense Service Medal. h. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board’s 15-year statute of limitations. 4. By regulation/directive, 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. 5. 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. 1. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered as were his record of service, frequency and nature of his misconduct, the reason for separation and whether to apply clemency. The Board applied Department of Defense standards for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board found insufficient evidence of in-service mitigation for the misconduct and the applicant did not provide character witness statements or evidence of post-service achievements for the Board to consider in support of a clemency determination. Based upon a preponderance of evidence, to include a short term of honorable service completed prior to a pattern of misconduct, as well as a the absence of evidence that the applicant accepted responsibility and showed remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct and not in error or unjust. 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. 6 September 2019 X CHAIRPERSON Signed by: 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, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) provides that an honorable discharge is given when the quality of the Soldier's service has generally met standards of acceptable conduct and duty performance. b. Paragraph 1-9e (General Discharge) provides that 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. c. Paragraph 1-9f (Undersirable 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, that an individual is subject to separation for unfitness for frequent incidents of a discreditable nature, sexual perversion, drug abuse, patterns of shirking, an established pattern showing dishonorable failure to pay debts, and homosexual acts. 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 (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official government acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for the 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 1. that might have been received if the original discharge had been for the revised reason or has the upgraded service characterization. //NOTHING FOLLOWS//