ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 23 May 2019 DOCKET NUMBER: AR20180012344 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 12 September 1973 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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 became sick during his tour in Germany and was hospitalized for about a week. After that he wasn’t able to effectively maintain his duties as a Soldier. His company could not go on field training until they replaced him with another medic from another company. That occurred 45 years ago and he still has the same issues today. In 2012, he was diagnosed with cancer. He doesn’t think his release was fair. 3. The applicant enlisted in the Regular Army on 29 September 1972. 4. The applicant was formally counseled by his immediate commander on five separate occasions between July and August 1973, for infractions including but not limited to not shaving or getting his hair cut, being absent from his place of duty, and attitude and job performance. 5. The applicant accepted non-judicial punishment (NJP) on 10 August 1973, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for disobeying a lawful order to get a haircut on or about 8 August 1973. 6. The applicant was informed by his immediate commander on 23 August 1973 that actions were being initiated to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5, for unsuitability. 7. The applicant acknowledged receipt of the proposed separation notification on the same date. He consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effects of a waiver of his rights. He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him. 8. The applicant submitted a statement in his own behalf, wherein he stated: * he had a lack of interest in the organization * he would not adjust himself to Army rules and regulations and would not be ordered around * he would give and accept anything to get a separation from the Army 9. The applicant's commander formally recommended his separation from service on 23 August 1973, under the provisions of Army Regulation 635-200, paragraph 13-5, for unsuitability because of apathy, effective attitudes, and/or his inability to expend effort constructively. The separation authority approved the discharge on 31 August 1973 and directed the issuance of a General Discharge Certificate. 10. The applicant was discharged on 12 September 1973. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5b(3). His service was characterized as under honorable conditions. 11. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the applicant had limited creditable service, no wartime service and no mitigating circumstances for the misconduct. The Board agreed that the applicant’s discharge characterization is appropriate for 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 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 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member'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 provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 13 in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. It provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. 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. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. a. 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 governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. 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) AR20180012344 4 1