IN THE CASE OF: BOARD DATE: 24 June 2019 DOCKET NUMBER: AR20180013493 APPLICANT REQUESTS: The applicant requests reconsideration to upgrade his undesirable discharge. 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) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC87-07905 on 7 September 1988. 2. The applicant states he is requesting to change his discharge to general or honorable, in order to obtain a Department of Veterans Affairs (VA) loan to purchase a house for his family. When he was in the Army, there were pressing family matters of great urgency which could not be addressed by him across the country. His absence without leave (AWOL) is consistent with the dates of these serious family matters. 3. On 9 July 1968, the applicant was inducted into the Army of the United States. Six days later on 15 July 1968, he enlisted in the Regular Army for 3 years. 4. A review of the applicant’s record shows he was AWOL on 5 occasions. He was AWOL from on or about: * 29 November 1969 to 2 January 1970 * 15 January to 25 January 1970 * 4 February to 7 April 1970 * 22 May to 7 July 1970 * 1 September to 7 September 1970 5. The applicant received nonjudicial punishments, under Article 15, Uniform Code of Military Justice, for being AWOL on 2 occasions from on or about 22 May to 8 July 1970 and from on or about 1 to 8 September 1970. 6. On 8 September 1970, after being advised by counsel of the basis for the contemplated separation action, and the rights available to him, the applicant waived consideration, personal appearance, and representation by counsel before a board of officers. The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits. He was afforded the opportunity to submit statements in his own behalf, but he declined to do so. 7. A medical examination and psychiatric evaluation medically cleared the applicant for administrative separation. 8. On 21 September 1970, his commander recommended he be discharged under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness. The recommendation was based on frequent incidents of a discreditable nature with military authorities. The commander indicated the psychiatric evaluation did not show a character or behavior disorder. The applicant had been counseled numerous times and further rehabilitation attempts would be futile. His chain of command recommended approval of his discharge from the Army. 9. On 29 September 1970, the separation authority approved the recommendation and directed the applicant be furnished an undesirable discharge certificate. 10. On 8 October 1970, the applicant was discharged under the provisions of AR 635- 212 with an undesirable discharge. He had 1 year, 9 months, and 11 days of creditable active service, and 163 days of lost time. His DD Form 214 also shows an under other than honorable conditions character of service and no personal decorations. 11. On 29 November 1977, after careful consideration of the applicant’s records and evidence, the Army Discharge Review Board determined he was properly discharged and denied his request for an upgrade of his discharge. 12. On 7 September 1988, the Army Board for Correction of Military Records also denied the applicant’s request for an upgrade of his discharge. 13. Army Regulation 635-212 set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability. This regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. A discharge under other than honorable conditions was normally considered appropriate. 14. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), states that a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 15. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigation for the misconduct; the applicant provided no additional evidence to support his statement. The Board found the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability. This regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. A discharge under other than honorable conditions was normally considered appropriate. 2. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed the separation documents that would be furnished each individual who was separated from the Army. The SPN is used in statistical accounting to represent the specific authority and reason for separation. At the time the SPN 28B was authorized for separations under the provisions of Army Regulation 635-212 with the following associated narrative reason: "Unfitness - Frequent involvement in incidents of a discreditable nature with civil or military authorities." 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 (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. 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, 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. 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. ABCMR Record of Proceedings (cont) AR20180013493 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180013493 6 ABCMR Record of Proceedings (cont) AR20180013493 4