ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 June 2019 DOCKET NUMBER: AR20180016176 APPLICANT REQUESTS: The applicant requests: * reconsideration of his request to upgrade his under other than honorable conditions (UOTHC) discharge * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Memorandum from the Army Review Boards Agency, Congressional Liaison and Inquires (CLI) to Applicant, dated 15 August 2018 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 AR20150011135 on 19 May 2016. 2. The applicant provides a self-authored letter addressing an employee with the Army Review Boards Agency. It states: a. He received a discharge without a hearing. He was just told to get out of here (Army) and that his discharge was an other than honorable, not with honor, not dishonorable. He was told to "Just get out, we do not want you and this is our way of saving you. You will not receive any benefits." He has been asking for a hearing (i.e. personal appearance). Yes, he stole a pair of jump boots from a person who owed him money and would not pay him. He received a sentence of six months with two thirds of his pay forfeited for six months. He had rights and paid his dues. b. He went absent without leave (AWOL) because his request for leave was denied. He returned and was given the same time for the previous offense and paid his dues. He also went AWOL at Fort Campbell, KY because he could not get any leave; he was sentenced again and paid his dues. When he went AWOL at Fort Bragg, NC it was because he was called a "n_ " [expletive] by a 2nd Lieutenant (2LT). He told the 2LT to kiss his a_ (expletive). The 2LT told the applicant "I'm going to kick your n_ a_ (expletives) out of the Army." The applicant went AWOL for a weekend, returned, and went to the stockade. He was sentenced to six months confinement and forfeiture of two-thirds pay for six months. He served two months confinement and then was told to pack his bags and clear the post. c. He was being discharged without a hearing. He asks, is this right? He has tried to get a hearing in Houston, TX, Denver, CO, Phoenix, AZ, and Des Moines, IA. Fifty years have gone by. He is not asking for money, he only wants to be discharged by a board instead of hearing "I got the authority to do this." After 50 years, can someone realize enough is enough and just give him a hearing and hear his side? He is 70 years old, at least give him a reason to be satisfied. If he gets the opportunity for a personal appearance, he will say what he wrote in the letter at the hearing. d. He is 70 years old and maybe it does not matter to Mr. X.X., Mr. X.X., or Ms. X.X. Why he cannot have a hearing? Has he no rights? He claims that maybe they are also racist. When he was assigned to Fort Bragg, NC, he was called a n_ (expletive) by a 2LT and his force demanded him out of the Army without a hearing. All he wants is to be recognized as a veteran of the U.S. Army. 3. On 3 September 1965, at the age of 16 years, 11 months, and 10 days old, the applicant enlisted in the Regular Army for a term of 3 years. 4. On 14 June 1966, at the age of 17, he was convicted by a special court-martial of two specifications of stealing from another Solder. He was sentenced to confinement at hard labor for six months and a forfeiture of sixty-two dollars for six months. On 16 June 1966, the convening authority approved the sentence and ordered it executed. On 8 July 1966, the case was reviewed by the Office of the Staff Judge Advocate and found to be correct in law and fact. On 16 August 1966, the convening authority suspended the unexecuted portion of the sentence to confinement for four months. 5. He accepted nonjudicial punishment (NJP) on: * 18 November 1966, for absenting himself from guard duty. * 11 September 1967 for failing to go at the time prescribed to his appointed place of duty * 2 November 1967 for failing to repair (report) 6. On 20 December 1967, he was convicted by special court-martial for one specification of going from his appointed place of duty and two specifications of being AWOL: from 5 December 1967 and remained absent until 9 December 1967 and from 9 December 1967 and remained absent until 12 December 1967. He was sentenced to reduction to rank/grade of private one (PV1)/E-1, confinement at hard labor for six months, and forfeiture of pay of $90.00 for six months. On 26 December 1967, the convening authority approved the sentence and ordered it executed. On 24 January 1968, the case was reviewed by the Office of the Staff Judge Advocate and found to be correct in law and fact. 7. On 20 May 1968, he was convicted by special court-martial of one specification of being AWOL from 1 April 1968 and remained absent until 21 April 1968. He was sentenced to confinement at hard labor for six months and forfeiture of pay of ninety dollars for six months. On 22 May 1968, the convening authority approved the sentence and ordered it executed. 8. The complete facts and circumstances surrounding his discharge are not available for review with this case. His record contains: a. Special Orders Number 160, issued by Headquarters, U.S. Army Garrison Troop Command, Fort Bragg, dated 6 August 1968, which shows the applicant was discharged with an under other than honorable conditions characterization of service for unfitness with the issuance of an Undesirable Discharge Certificate. b. A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), which shows on 6 August 1968, he was discharged under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge Unfitness and Unsuitability) by reason of unfitness with a character of service as under other than honorable conditions with separation program number (SPN) 28B (unfitness – frequent involvement in incidents of a discreditable nature with civil or military authorities). He completed 1 year and 9 months of total active service and had 248 days of lost time (due to confinement and AWOL). He was awarded or authorized: * Parachutist Badge * National Defense Service Medal 9. The applicant provides a memorandum from the Army Review Boards Agency, dated 15 August 2018, which states on 6 July 2016, the Board considered and denied the applicant’s case and the decision was final. If the applicant believes the decision in his case was unclear or not responsive to the issues raised he may request reconsideration. 10. The applicant states he received a discharge without a hearing. He was just told to get out of here (Army) and that his discharge was an other than honorable, not with honor, not a dishonorable. And he would not receive any benefits. He has been asking for a hearing (i.e. personal appearance). His record shows he enlisted at the age of 16 years, 11 months, and 10 days old, he accepted three NJPs, he was convicted by three special courts-martial, and he had 248 days lost due to AWOL and confinement. He served 21 months of his 36 months contractual obligation. 11. AR 635-212 provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. An undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge. 12. AR 635-200 (Personnel Separations - Enlisted Personnel), provided A member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 13. AR 635-5 (Personnel Separation – Separation Documents), stated that SPN 28B was designated under the authority of AR 635-212 for unfitness – frequent involvement in incidents of a discreditable nature with civil or military). 14. 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. 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 in-service mitigation for the misconduct and 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. 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. 3. 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 (AR) 635-212 (Personnel Separations – Discharge Unfitness and Unsuitability), in effect at the time, set forth the policy for administrative separation for unfitness. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. An undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge. 2. AR 635-200 (Personnel Separations - Enlisted Personnel) in effect at the time, set forth the basic policy for the separation of enlisted personnel. A member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization will be conditioned upon 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. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. AR 635-5 (Personnel Separation – Separation Documents), in effect at the time, prescribed the separation documents that will be furnished each individual who is separated from the Army, including active duty for training personnel, and established standardized procedures for the preparation and distribution of these documents. It stated that SPN 28B was designated under the authority of AR 635-212 for 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 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 the applicant. 5. 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. ABCMR Record of Proceedings (cont) AR20180016176 6 1