ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 30 April 2019 DOCKET NUMBER: AR20180016885 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable 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) * DD Form 214 (Report of Separation from Active Duty), for the period ending 28 February 1972 * DD Form 215 (Correction to DD Form 214), dated 3 August 1978 * three Department of Veterans Affairs (VA) Forms 21-4138 (Statement in Support of Claim) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), 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 enlisted in the Regular Army on 31 January 1969. 3. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * on 1 May 1970, for failure to go at the time prescribed to his appointed place of duty, on or about 1 May 1970 * on 13 May 1970, for failure to go at the time prescribed to his appointed place of duty, on or about 3 May and 13 May 1970 * on 23 July 1970, for failure to go at the time prescribed to his appointed place of duty, on or about 22 July and 23 July 1970 * on 10 September 1970, for failure to go at the time prescribed to his appointed place of duty, on or about 4 September 1970 * on 26 January 1971, for willfully disobeying a lawful order on or about 14 January 1971 4. Before a summary court-martial on 30 August 1971, at Fort Bragg, NC, the applicant was found guilty of willfully disobeying a lawful order given by his superior commissioned officer, on or about 19 July 1971. His sentence included reduction to the rank/grade of private/E-1, forfeiture of one month pay, and hard labor without confinement for a period of 45 days. 5. Before a summary court-martial on an undetermined date, at Fort Bragg, NC, the applicant was found guilty of three specifications of failure to go at the prescribed time to his appointed place of duty, to wit: extra duty, between on or about 18 September and on or about 20 September 1971. He was sentenced to 30 days hard labor and forfeiture of one month pay. 6. The applicant's commander notified the applicant on 27 October 1971 of his intent to initiate actions to separate him from service under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). 7. The applicant consulted with counsel and was advised of the basis for the contemplated actions to separate him from service under the provisions of Army Regulation 635-212, by reason of unfitness. After consulting with counsel, the applicant acknowledged receipt of the proposed separation notification and requested consideration of his case by a board of officers. He further acknowledged that he: * did not intend to submit a statement in his own behalf * may be deprived of many rights and benefits as a Veteran under both Federal and State law * may encounter substantial prejudice in civilian life if he were issued a general discharge 8. The applicant's commander formally recommended his discharge on 29 October 1971, under the provisions of Army Regulation 635-212, based on unfitness. 9. An administrative separation board was directed to convene no later than 28 January 1972; however, the applicant’s separation documents indicate he was in an absent without leave status until 4 January 1972. There is no evidence a board was conducted. 10. The separation authority approved the recommended discharge on 17 February 1971 and directed the issuance of a General Discharge Certificate. 11. The applicant was discharged on 28 February 1972, under the provisions of Army Regulation 635-212, and his service was characterized as under honorable conditions. 12. The Army Discharge Review Board (ADRB) considered the applicant's request for a discharge upgrade on two separate occasions. By letters dated 18 July 1978 and 30 August 1979, the ADRB determined he was properly and equitably discharged and denied his petition for a discharge upgrade. 13. The Board should consider the applicant's character reference letters 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 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): 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 635-200 (Personnel Separations – Enlisted Personnel), then in effect, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d provided that 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 be clearly inappropriate. b. Paragraph 1-9e provided that a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. Army Regulation 635-212, then in effect, provided the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability. It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts. This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180016885 4 1