SAMR-RB 31 July 2019 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, SSN , AR20180015133 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 30 April 2019, in which the Board members recommended denial of the applicant’s request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by reissuing his DD Form 214 for the period of service ending 23 December 1977 to reflect “General, under honorable conditions” in item 24 (Character of Service). 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 30 November 2019. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl CF: ( ) OMPF BOARD DATE: 30 April 2019 DOCKET NUMBER: AR20180015133 APPLICANT REQUESTS: The applicant requests, in effect, his other than honorable conditions be upgraded to an honorable 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 he applied for unemployment compensation in 1978 and was turned down; he received a letter stating his discharged was changed to under honorable conditions and he received unemployment. He sent a letter with his application. He wants to know if his discharge was upgraded. 3. On 1 April 1976, the applicant enlisted in the Regular Army. His personnel qualification record shows his first duty assignment was Korea where he served as a Gunner, obtained the rank of private first class (PFC/E3) and then transferred to his second duty assignment on Fort Campbell, KY on 16 September 1977. 4. On 22 March 1977, he received non-judicial punishment (NJP) for failing to have in his possession his Armed Forces Liberty Card. 5. He underwent a Summary Court-Martial (SCM) and was found guilty for: * Failing to go at the prescribed time to his appointed place of duty * Absent himself from his unit on or about 25 October 1977 to on or about 28 October 1977. 6. On 3 November 1977, the sentences was adjudged and he was sentence to being reduced to Private (E1), to forfeit $265.00 pay for one month, and to be confined for 30 days. 7. On 19 December 1977, the applicant’s commander recommended he be separated under the provisions of Chapter 13, Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), for misconduct and advised him of his available rights. The commander stated unsuitability is not deemed appropriate because his behavior is not due to an inability to satisfactorily perform. The applicant has one court- martial and one Article 15 punishment. He was sent to the Brigade to receive correctional training and treatment necessary to return to duty as a well-trained Soldier with improved motivation and attitude; however, he has demonstrated little desire to return to duty. He possess the mental and physical ability necessary to be an effective Soldier, but his present record and his failure to react constructively to the rehabilitation program are indicative that he should not be retained in the service. 8. On 21 December 1977, the applicant was advised by legal counsel and acknowledged that he understood his available rights. The appropriate authority approved the recommendation for discharge of the applicant and directed he be discharge under other than honorable conditions. 9. On 23 December 1977, the applicant was discharged accordingly. He completed 1 year, 7 months and 24 days of total active service. Approximately 29 days lost. 10. Army Regulation 635-200 states members are separated for unsatisfactory performance when, in the commander's judgment when the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order, and morale; the service member would be a disruptive influence in the future the basis for separation would continue or recur; the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely. The issuance of a discharge other than honorable conditions is normally considered appropriate; however, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 11. His records shows he was received NJP and was court-martialed for missing formation and 4 days of AWOL, as a result of his court-martial he was confined from 3 November 1977 to 24 November 1977. 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: 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. 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): Based on the available evidence the applicant was AWOL from 25 – 28 October 1977; as a result his DD Form 214 should be amended to read: * Item 21 (Time Lost): 26 Days * Item 27 (Remarks): Delete "25 Oct 77 thru 31 Oct 77" and add "25 Oct 77 thru 28 Oct 77" 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 Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. A Chapter 13 in effect at that time is applicable to member when frequent incidents of a discreditable nature with civil or military authorities. In the commander's judgment when the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order, and morale; the service member would be a disruptive influence in the future the basis for separation would continue or recur; the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely. The issuance of a discharge other than honorable conditions is normally considered appropriate; however, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180015133 2 ABCMR Record of Proceedings (cont) AR20180015133 1