ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 May 2019 DOCKET NUMBER: AR20180015164 APPLICANT REQUESTS: an upgrade of his under honorable conditions discharge to honorable. 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 spent a lot of years in the Army to be discharged with a general discharge. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 30 July 1969. b. The DA Form 20B (Insert sheet to DA Form 20 – Record of Court Martial Conviction) shows that he was charged with one specifications of being absent without leave (AWOL) from 19 December 1970 to 19 April 1971, his punishment in part reduction to E-1 and confinement at hard labor for 6 months. c. He accepted nonjudicial punishment on: * 10 March 1970, for AWOL from 2 to 10 March 1970 * 1 May 1970, he treated with contempt a noncommissioned officer, his punishment in part reduction to E-1 * 17 December 1970, for AWOL on 7 December 1970 * 4 May 1977, for driving under the influence * 28 June 1977, disobeyed a lawful order d. Special Court Martial Order (SCMO): * Number 18 – dated 9 July 1971, shows one specification of AWOL from 19 December 1970 to 19 April 1971, his punishment in part reduction to E-1, and confined to 6 months of hard labor suspended for a period of 3 months on 25 June 1971. Approved and duly executed on 9 July 1971 * Number 549 – dated 30 August 1971, shows that all unexecuted portions of the sentences to confinement at hard labor and forfeiture of pay were remitted e. On 22 September 1977, his unit commander recommended separation under the provisions of paragraph 13-5a, AR 635-200 (Personnel Separations) for unfitness for further military duty. He proved through his actions, the lack of discipline, integrity, motivation and efficiency for further military service. His complete disregard for his own personal conduct within the framework of military regulations had been prejudicial to maintaining law and discipline within the military. The applicant is not eligible for rehabilitative transfer. f. On 30 September 1977, the intermediate commander reviewed the proposed discharge action and recommended waiver of the rehabilitation transfer requirements because the applicant had the experience of rehabilitation following a long term AWOL and confinement during his last assignment. He demonstrated a contempt for military law, order and discipline. He recommended approval of the separation. g. The separation authority approved the applicant’s discharge on 13 October 1977, under the provisions of AR 635-200, paragraph 13-5a(1) for misconduct, and directed he be furnished a general discharge certificate, SPD JLB- Discreditable Incidents - Civilian or Military. The award of a general discharge is based on the overall character of the applicant’s service, including the absence of derogatory information on him from the time of his released from confinement in 1971 through December 1976. h. He was discharged on 27 October 1977. His DD Form 214 showed he was discharged under the provisions of paragraph 13-5a (1), AR 635-200, SPD JKA Discreditable Incidents – Civilian or Military with a characterization of service as under honorable conditions (general). He completed 3 years, 8 months, and 2 days active service during this period and 3 years, 10 months and 13 days prior service. No lost time this period. His DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) for separation date 27 October 1977 corrected item #10 to read RE-3, RE-3C and item #27 to delete 2-4, 2-5, AR 601-210 apply and added: Table 4-1, AR 601-210 applies. 4. The Army Discharge Review Board responded by letter, on 21 March 1979 to the applicant and advised him that they have carefully considered his military records and all other available evidence and determined that his request for a change in the type and nature of his discharge had been denied. 5. By regulation 635-200, a Soldier may be separated when it is determined that he or she is unqualified for further military service because of performance. The service of Soldiers separated under chapter 13 of AR 635-200, will be characterized as honorable or under honorable conditions as warranted by their military record. Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharged because of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. 6. 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 BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the relatively short term of service completed prior to a lengthy pattern of misconduct, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 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, sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel. a. Paragraph 1-9d (Honorable discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). b. Paragraph 13-5a in effect at that time, applied to separation for unfitness and unsuitability, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 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 based on 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. ABCMR Record of Proceedings (cont) AR20180015164 4 1