DEPARTMENT OF THE ARMY ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMR-RB 26 June 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 , AR20180016340 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 25 April 2019, in which the Board 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 amending his DD Form 214 for the period of service ending 16 April 1976 to reflect a General, under honorable conditions character of service. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 30 September 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 Printed on Recycled Paper ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 April 2019 DOCKET NUMBER: AR20180016340 APPLICANT REQUESTS: In effect, his under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, Section 1552 (b); 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 he tried to get help while he was in the Army. He became an alcoholic while he was in the Army and he tried to get help but the Army would not help him. 3. The applicant enlisted in the Regular Army on 2 May 1975. 4. The applicant’s record contains a DA Form 2627-1 (Record of Proceedings Under Article 15, [Uniform Code of Military Justice] UCMJ) that shows he received non-judicial punishment (NJP) on the following dates for the indicated offenses: a. On 16 December 1975, under the provisions of Article 15 of the UCMJ, for failing to go at the time prescribed to his appointed place of duty, on or about 5 December 1975. b. On 22 January 1976, for failing to go at the time prescribed to his appointed place of duty, on or about 13 and 14 January 1976. c. On 4 February 1976, for stealing a five gallon military gas can, property of the U.S. government, on or about 24 January 1976, and for failing to accomplish a detail given to him by a superior noncommissioned officer, on or about 28 January 1976. d. On 26 March 1976, for failing to go at the time prescribed to his appointed place of duty, on or about 24 March 1976. 5. The applicant's commander notified the applicant of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13-5a (1), by reason of unfitness. 6. The applicant's immediate commander recommended that he be discharged for unfitness, based on the applicant's frequent acts of discreditable nature with military authority. 7. The applicant consulted with counsel and was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, chapter 13-5a (1), its effect of the rights available to him, and of the effect of any action taken by him to waive his rights. a. The applicant acknowledged receipt of the proposed separation memorandum. He waived representation by counsel and personal appearance before, and consideration of his case by, a board of officers. He waived his right to submit a statement in his own behalf. b. The applicant acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if an under honorable condition discharge, was issued to him. 8. The applicant's battalion commander recommended approval of the applicant's discharge for unfitness. 9. The separation authority approved the applicant’s discharge on 7 April 1976 and that he be separated under the provisions of Army Regulation 635-200, paragraph 13-5a (1), by reason of unfitness. He further directed the applicant be issued an Undesirable Discharge Certificate. 10. The applicant was discharged on 16 April 1976, following his completion of 11 months and 15 day of total active service. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a (1), by reason of unfitness. His service was characterized as UOTHC. 11. Army Regulation 635-200 provided the authority for the separation of enlisted personnel upon expiration of term of service; the authority and general provisions governing the separation of enlisted personnel prior to expiration of term of service; and the criteria governing the issuance of Honorable and General Discharge Certificates. 12. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the Board agreed that the applicant’s discharge characterization is appropriate for 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. X CHAIRPERSON 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. 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 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 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 begins its consideration of each case with the presumption of administrative regularity, which is what the Army did was correct. It is not an investigative agency. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b provides that 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 13 provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. a. 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, Boards 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. b. 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.