ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20180015304 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions 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 his best 2 1/2 years in the service were with a good record. He made E-4 in 15 months and he was an instructor in heavy weapons. He received orders for Okinawa when he was 18 1/2 years old and was involved with a girl. This made it great being absent without leave (AWOL). It was his first time away from home and he was young and dumb. He was in the Army Reserves for 4 months, then reenlisted in the Regular Army for 8 years. His record up until he went to Okinawa should help change the Board’s mind. He uses the veteran affairs for breathing prescriptions for emphysema. He deserves this much, he doesn’t have much time left. 3. A review of the applicant’s service record shows: a. Having had prior service in the Army National Guard he enlisted in the Regular Army on 15 February 1966. b. His DD Form 20 shows he was assigned to the 137th Ordnance Company and 175th Ordnance Company, Okinawa, Japan from 22 July 1967 to 22 January 1969. c. The DA Form 20B (Insert sheet to DA Form 20 – Record of Court Martial Conviction) shows that he was charged with four specifications of AWOL: * 15 March to 26 March 1968 and 1 April to 4 April 1968, his punishment in part reduction to E-3 * 2 July to 5 July 1968, his punishment confined at hard labor for 30 days * 23 September to 3 October 1968, his punishment in part reduction to E-1 and confined to hard labor for 3 months d. Special Court Martial Order (SCMO): * Number 123 – dated 23 April 1968, shows two specification of AWOL from15 March to 26 March 1968 and 1 April to 4 April 1968, his punishment in part reduction to E-3, approved and duly executed on 23 April 1968 * Number 8 – dated 25 July 1968, shows 2 July to 5 July 1968, his punishment confinement to hard labor for 30 days, approved and duly executed on 25 July 1968 * Number 9 – dated 9 August 1968, shows that the unexecuted portion of the sentence to confinement to hard labor for 30 days, promulgated in summary court martial order number 8 dated 25 July 1968 was suspended for 15 days * Number 262 – dated 23 October 1968, shows one specification of AWOL from 23 September to 3 October 1968, his punishment in part reduction to E- 1 and confined to hard labor for 3 months, approved and duly executed on 23 October 1968. * Number 280 – dated 22 November 1968 states so much of SCMO Number 262, dated 23 October 1968, as suspends execution of the sentence of confinement at hard labor for 3 months was vacated. The unexecuted portion of the sentence to confinement at hard labor for 30 days duly executed. * Number 300 – dated 21 December 1968 states so much of SCMO Number 280, dated 22 November 1968, as suspends execution of the sentence of confinement at hard labor for 3 months was vacated. The unexecuted portion of the sentence to confinement at hard labor for 30 days duly executed e. On 27 August 1968, the immediate commander submitted and Certificate of Unsuitability for Reenlistment on the applicant to bar from reenlistment. The approving authority approved the Certificate of Unsuitability for Reenlistment was on 5 September 1968. f. The applicant underwent a psychiatric evaluation on 31 October 1968. The examiner stated on 5 November 1968 that the applicant was diagnosed with anti- social personality. He considered the applicant to be sane, responsible, and capable of distinguishing right from wrong, capable of adhering to rights, capable of cooperating in his own defense and participating in administrative proceedings. 4. On 9 January 1969, the applicant's immediate commander notified the applicant of his intent to separate him under the provisions of Army Regulation (AR) 635-212, (Discharge – Unfitness and Unsuitability) for unfitness on the grounds of shirking and frequent incidents of a discreditable nature with military authorities. He advised of him that he will be counseled by a legal advisor from the staff judge advocate. He explain the rights with regard to the possible elimination, which included the right to: * present his case before a board of officers * submit a statement in his own behalf * to be represented by counsel * to waive the above rights 5. On 9 January 1969, his immediate commander initiated the recommendation to separate him under the provisions of AR 635-212, because of a long history of misconduct, a lack of regard to authority, and unwillingness to correct his pattern of misbehavior. 6. After consulting with legal counsel on 10 January 1969 of the basis for the contemplated action to accomplish his separation under the provisions of AR 635-212, for unfitness, and its effects, the right available to him, and the effect of any action taken by waiving his rights. He acknowledged: * and waived rights to consideration of his case by a board of officers * and waived a personal appearance before a board of officers * •the right to submit a statement on his own behalf, he elected not to submit a statement * and waived his right to be represented by counsel * he could encounter substantial prejudice in civilian life if general discharge under honorable conditions is issued 7. Consistent with the chain of command recommendations on 18 January 1969, the separation authority approved the request for discharge under the provisions of AR 635-212, for unfitness. He directed he be issued 132 days of time. 8. Army Regulation, SPN 28B - Unfitness, is an established pattern for showing dishonorable failure to contribute adequate support to dependents or failure to comply with order, decrees, or judgment of a civil court concerning support of dependents. 9. By regulation 635-212, paragraph 4a states that an individual separated by reason of unfitness will be furnished an undesirable discharge certificate except that an honorable or general discharge certificate may be awarded if may be awarded if the individual being discharged has been awarded a personal decoration or if warranted by the particular circumstances in a given case. 10. In reaching its determination, the Board can consider the applicants 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 multiple AWOL offenses and a lack of character evidence submitted by the applicant showing he has learned and grown from the events leading to his discharge, 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. AR 635-212, provides procedures and guidance for eliminating enlisted personnel who are found to be unfit or unsuitable for further military service. a. Paragraph 4b, states that an individual separated by reason of unsuitability will be furnished an honorable or general discharge certificate as warranted by his military record. b. Paragraph 6a, states an individual is subject to separation under the provisions of this regulation when one or more of the following conditions exist for unfitness: * frequent incidents of a discreditable nature with civil or military authorities * sexual perversion including but not limited to: lewd and lascivious acts, indecent exposure, indecent acts with, or assault upon a child, or other indecent acts or offenses * drugs addiction or the unauthorized use or possession of habit-forming drugs or marijuana * an established pattern for shirking. * an established pattern showing dishonorable failure to pay just debts * an established pattern showing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgments of a civil court concerning of dependents. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. ABCMR Record of Proceedings (cont) AR20180015304 5 1