ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  19 April 2019

	DOCKET NUMBER:  AR20180014507


APPLICANT REQUESTS: 

*	upgrade his general discharge under honorable conditions
*	a personal appearance before the Board

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 3-year time frame provided in Title 10 (Armed 
Forces), United States Code (USC), section 1552 (b) (Correction of Military Records:  
Claims Incident Thereto).  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, in effect, his leadership unjustly punished him.  

	a.,  His reenlistment was coming up and he wanted a reassignment to Panama; his 
commander told him he would not be reenlisting or going to Panama because he was 
flagging the applicant (i.e. suspending all personnel action).  Later, a lieutenant called 
him in and said, "spit shine boots and starch fatigues don't make a Soldier; some are 
just pee-ons."  The applicant became depressed and felt rejected.  After this, he 
stopped reporting for work and things fell apart; his court-martial was based on the 
foregoing behavior.  He collected proficiency pay in both of his military occupational 
specialties (MOS), and attended school and training to better himself.  He was not 
Soldier material for 6 years and 3 months.

	b.  He asserts he has been denied membership into banking because of his 
discharge.  He states, "I'm not gay, but put up with remarks at me a lot of fights."  He 
maintains he always did his job and pulled his own weight.  He is now unable to move 
on because no one sees him for the man he is; he notes he read about filing an 
application to the Board at the Department of Veterans Affairs' website.

3.  The applicant's service records show:

	a.  He enlisted into the Regular Army on 20 September 1967 for a 3-year term; he 
held two MOS:  95B (Military Police) and 16D (Hawk Missile Crewman).  On 27 July 
1969, he was honorably discharged; he immediately reenlisted on 28 July 1969 for 
6 years.  

	b.  On 17 November 1969, and again on 17 August 1971, he accepted nonjudicial 
punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice 
(UCMJ):

*	17 November 1969 – for willfully disobeying the lawful order of a superior 
noncommissioned officer (NCO) and using disrespectful toward a superior 
NCO
*	17 August 1971 – for using contemptuous and disrespectful language toward 
a superior NCO

	c.  On or about 22 October 1971, a summary court-martial convicted the applicant of 
the following UCMJ violations:  three specifications of absenting himself from his place 
of duty and one specification of willfully disobeying the lawful order of a superior 
commissioned officer.  The court sentenced him to forfeit $165.00 per month for one 
month, extra duty for 10 days, and reduction in rank from specialist four to private first 
class.  On 27 October 1971, the summary court-martial convening authority approved 
the sentence and ordered its execution.

	d.  Effective 6 October 1972, orders promoted him to sergeant (SGT)/E-5.

	e.  The applicant accepted NJP on 29 March and 15 August 1973:

*	29 March 1973 – for failing to go to his appointed place of duty at the time 
prescribed
*	15 August 1973 – for two specifications of failing to go to his appointed place 
of duty at the time prescribed; the punishment of $75.00 per month for one 
month was suspended, and then vacated on 24 August 1973

	f.  On 5 December 1973, a social work officer evaluated the applicant and essentially 
stated:

*	the applicant had been seen on several occasions; a doctor and the social 
work officer determined he was free of neurosis or psychotic disorder
*	the problems he was experiencing with his home environment and the Army 
were of his own responsibility
*	administrative action contemplated by the applicant's chain of command 
should not be restrained due to a possible marginal mental status; such was 
not present at that time

	g.  On 8 January 1974, the applicant's commander initiated bar to reenlistment 
action against him; on 16 January 1974, the applicant's brigade commander approved 
this action.  The commander stated the applicant's leadership had counseled him on 
numerous occasions; his conduct and efficiency were unsatisfactory.  The commander's 
bases for the bar to reenlistment were:  

*	accepted NJP on 15 August 1973 for being absent from formation two times
*	late for duty briefing on 26 August 1973
*	absent without leave (AWOL) from 9 until 15 November 1973
*	referred to the hospital for counseling in November 1973

	h.  On 13 February 1974, a special court-martial convicted the applicant of four 
specifications of failing to go to his appointed place of duty at the time prescribed.  The 
court sentenced him to reduction in rank from SGT to private/E-1.  On 15 February 
1974, the special court-martial convening authority approved the sentence and ordered 
its execution.  

	i.  On 15 February 1974, his commander notified the applicant in writing of his intent 
to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel 
Separations – Enlisted Personnel) for unsuitability (chapter 13 (Separation for Unfitness 
or Unsuitability).  Also on 15 February 1974, after consulting with counsel, the applicant 
affirmed counsel had advised him of the basis for the separation action.  He waived his 
right to personally appear before, and have his case considered by a board of officers; 
he elected not to submit a statement in his own behalf.  

	j.  In his recommendation to the separation authority, the commander stated his 
reasons for initiating this action were the applicant's immaturity and inability to adjust to 
the military environment.  On 26 February 1974, the separation authority approved the 
commander's recommendation and directed the applicant's general discharge under 
honorable conditions.  The approval listed the separation's basis as paragraph 
13-5b(3) (Unsuitability – Apathy), AR 635-200 and showed a separation program 
number (SPN) of "264" (Unsuitability – Character and Behavior Disorders).  

	k.  On 1 March 1974, he was discharged accordingly.  His DD Form 214 (Report of 
Separation from Active Duty) shows he completed 4 years, 7 months, and 4 days of his 
6-year enlistment term.  He was awarded or authorized the National Defense Service 
Medal, Armed Forces Expeditionary Medal, and a marksmanship qualification badge.  
The DD Form 214 stated the separation authority was paragraph 13-5b (2) (Character 
and Behavior Disorders), AR 635-200; the separation program designator (SPD) was 
"264."
4.  In regards to the applicant's request for a personal appearance, Army Regulation 15-
185, states an applicant is not entitled to a hearing before the Board; however, the 
request for a hearing may be authorized by a panel of the Board or by the Director of 
ABCMR. .  

5.  Although not required at the time, the September 2000 revision of 
AR 635-5 mandated the inclusion of remarks pertaining to dates for immediate 
reenlistments.  In cases where the separating Soldier received a less than honorable 
character of service, the regulation required the addition of the following remark:  
"CONTINUOUS HONORABLE SERVICE FROM (first day of service not listed on the 
DD Form 214) TO (date before commencement of current enlistment)."

6.  The applicant asserts he, in effect, became discouraged when his commander 
flagged him prior to his reenlistment, along with comments made by a lieutenant.  His 
subsequent behavior was in response to those actions, and resulted in his court-martial.  
Nonetheless, he did his job and maintained a high level of MOS proficiency; he 
continued to seek self-improvement through training.  

7.  In reaching its determination, the Board can consider the applicant's petition, his 
service record, and his statements in light of the published guidance on equity, injustice, 
or clemency.  

BOARD DISCUSSION:

1.  After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The applicant’s contentions were carefully 
considered.  The Board applied Department of Defense standards of liberal 
consideration to the complete evidentiary record and did not find any evidence of error, 
injustice, or inequity.  He did not provide character witness statements or evidence of 
post-service achievements for the Board to consider.  Based upon the record, the Board 
agreed that the applicant's discharge characterization was warranted as a result of the 
misconduct.

2.  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.



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):

1.  AR 635-5 (Separation Documents) prescribed guidance for the completion of the 
DD Form 214 and stated paragraph 9c (Authority and Reason) was to reflect the 
statutory and/or regulatory authority for separation, along with the SPN, as listed in 
AR 635-5-1 (SPD).  When the authority was paragraph 13-5b (2), the SPD was "264"; 
SPD "46A" applied to separations based on paragraph 13-5b (3).

2.  Paragraph 13-5b (2), AR 635-200, required medical authority to determine a Soldier 
had a character or behavior disorder, as described in a medical technical bulletin, prior 
to being considered for separation under this provision.

3.  As a result, amend his DD Form 214, ending 1 March 1 by deleting the current 
entries in item 9c, and replacing them with, "Paragraph 13-5b (3), AR 635-200, 
SPD 46A."

REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military 
records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the 
interest of justice to do so.  With respect to courts-martial, and related administrative 
records pertaining to court-martial cases tried or reviewed under the UCMJ, action to 
correct any military record of the Secretary's Department may extend only to actions 
taken by reviewing authorities under the UCMJ or action on the sentence of a court-
martial for purposes of clemency.  The Secretary of the Army shall make such 
corrections by acting through boards of civilians within the executive part of the Army.

2.  AR 635-200, in effect at the time, prescribed policies and procedures of enlisted 
administrative separations.  

	a.  Paragraph 1-9d (Honorable Discharge) stated an honorable discharge was a 
separation with honor.  Issuance of an honorable discharge was conditioned upon 
proper military behavior and proficient duty performance.  A Soldier's service was to be 
characterized as honorable based on conduct ratings of at least "Good"; efficiency 
ratings of at least "Fair"; no general court-martial, and no more than one special court-
martial conviction.

	b.  Chapter 13 established policies and procedures for the elimination of enlisted 
personnel who were determined to be unfit or unsuitable for continued military service.  

		(1)  Paragraph 13-5b (2) stated, as determined by medical authority, character 
and behavior disorders, and disorders of intelligence, were listed in Technical Bulletin, 
Medical, Number 15; such disorders could be used as a basis to separate Soldiers 
when chronic, unresponsive to rehabilitation, and interfered with the Soldier's ability to 
adequately perform duties.

		(2)  Paragraph 13-5b (3) addressed Soldiers who displayed a lack of appropriate 
interest, a defective attitude, and/or the inability to expend effort constructively.  

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 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.  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.

4.  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 has the 
discretion to hold a hearing; applicants do not have a right to appear personally before 
the Board.  The Director or the ABCMR may grant formal hearings whenever justice 
requires.

//NOTHING FOLLOWS//


ABCMR Record of Proceedings (cont)	 AR20180014507

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