ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS . BOARD DATE: 11 June 2019 DOCKET NUMBER: AR20190001357 APPLICANT REQUESTS: In effect, his undesirable discharge be upgraded to either an under honorable conditions (general) discharge or 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), dated 12 December 2018 * DD Form 214 (Report of Separation from Active Duty), for the period ending 18 January 1974 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 states: a. It is not so much an error or injustice but he was a young serviceman making bad decisions at a young age. He was 17 years old and when he landed in Europe; he took up with the wrong crowd. b. It has been over 44 years since he left the Army and the decisions he made while he was in the Army were bad. He has learned a lot since he left the Army; he has gleaned throughout his life some of the things that were taught to him when he was in the military. c. The undesirable discharge has been on his shoulder and that is why he would like for it to be removed or upgraded. He and he wife went to a Veterans Day parade and as the high school cadets went marching by, it brought back to him a sense of honor that he did serve his country. It was not the way he planned to end his Army career but he wanted to let those young cadets finish well in there time of service when it came. 3. The applicant enlisted in the Regular Army on 8 October 1971. He completed training as a wheel vehicle mechanic. 4. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the following offenses: a. On 29 October 1971, for being disorderly in conduct, prejudicial to the good order and discipline in the Armed Forces, and for being disrespectful towards a superior commissioned officer, on or about 24 October 1971. b. On 28 August 1972, for leaving his appointed place of duty before being properly relieved, on or about 20 August 1972. c. On 21 June 1973, for failure to go at the time prescribed to his appointed place of duty, twice on or about 14 June 1973. 5. The applicant was counseled on the following dates for the following offenses: a. On 2 November 1972, an investigation being conducted surrounding his hospitalization on 1 November 1972. b. On 13 November 1973, being absent without leave (AWOL) from 0715 hours until 0900 hours on 13 November 1973. c. On 13 November 1973, unsatisfactory performance. d. On 16 November 1973, being AWOL on 14 November and 15 November 1973 e. On 10 December 1973, investigations being conducted surrounding his AWOL on 4 December, 5 December, 6 December, and 7 December 1973. f. On 12 December 1973, being late for work, not going to work, and his sloppy appearance. 6. The applicant was notified on 28 December 1973 that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a(4), for unfitness. He acknowledged receipt of the notification on 28 December 1973. He consulted with counsel and he declined to make a statement in his own behalf. 7. The applicant's commander formally recommended the applicant's discharge, under the provisions of Army Regulation 635-200, paragraph 13-5a(4), for unfitness – an establish pattern for shirking. 8. The separation authority approved the recommendation for discharge on 14 January 1974 and directed reduction to the lowest enlisted grade and the issuance of a DD Form 258A (Undesirable Discharge Certificate). 9. The applicant's DD Form 214 shows he was discharged on 18 January 1974, under the provisions of Army Regulation 635-200, chapter 13-5a(4). He received an Undesirable Discharge Certificate. 10. The Army Discharge Review Board denied the applicant's request for an upgrade of his discharge on 2 August 1976. 11. Army Regulation 635-200 provides the authority for 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, General, and Undesirable Discharge Certificates. 12. The Board should consider the applicant's provided evidence and personal statement 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 discussed the frequency and nature of the applicant’s misconduct and consideration of clemency guidance. The Board determined that the character of service he received was too harsh and that an upgrade was appropriate. 2. After reviewing the application and all supporting documents, the Board determined that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 for the period of service ending 18 January 1974 to show his character of service as General, under honorable conditions. 2 July 2019 X Chairperson Signed by: 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 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel. a. Paragraph 3-7a provides that 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. c. Chapter 13, in effect at that time, applied to separation for unfitness or unsuitability. Paragraph 13-5a provided for separation for unfitness, 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. 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.