ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 11 July 2019 DOCKET NUMBER: AR20190001468 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to a general. 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 at the time of his discharge he had just come back after being absent without leave (AWOL) and from police custody. He had been in jail for nine months prior to being returned to the Army; he was then put in the stockade for 60 days. He was angry and had a problem with authority; he wasn’t given the opportunity to adjust. He had an incident with a Staff Sergeant resulting in a special court-martial about 40 years ago involving a trash detail. He doesn’t believe the incident warranted such extreme measures at that time and didn’t realize the ramifications of his discharge which has followed him all of his adult life. He served some of his enlistment and believes some of his good time should be considered in his request. 3. On 15 June 1970, the applicant enlisted in the Regular Army for three years at the age of 19. 4. On 1 December 1971, the applicant underwent a special court-martial and was found guilty for being AWOL on two separate occasions, from on or about 23 October 1970 to on or about 5 December 1970 and 8 December 1970 to on or about 1 February 1971. 5. On 3 December 1971, the sentence was adjudged and he was confined at hard labor for two months and reduced to Private (E1). 6. On 28 February 1973, the applicant received a notification to appear before a board of officers to determine if he should be discharge under Army Regulation (AR) 635-200, Chapter 13 for unfitness. 7. On 16 March 1973, the applicant appeared before a board of officers who determined he was unfit for further retention in the military service because of frequent incidents of a discreditable nature toward military authority and an established pattern for shirking exhibited by repetitive incidents of unexcused absences. The board also deemed further rehabilitation was not possible and recommended the applicant be discharged with an undesirable discharge. 8. On 17 January 1973, the applicant was notified by that his command was requesting his discharge under the provisions (UP) of Chapter 13, Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), for unfitness and advised him of his rights. The applicant was advised by legal counsel and acknowledged that he understood his available rights. 9. The commander recommended he be separated UP of chapter 13 for unfitness. The recommendation was because of frequent incidents of a discreditable nature with civil and military authorities manifested by a defective attitude and characterized by undisciplined behavior which renders his unwillingness to perform his duties and disrespect towards general military discipline. 10. On 25 June 1973, the appropriate authority approved the recommendation for discharge of the applicant and directed he receive an undesirable discharge certificate. 11. On 17 July 1973, the applicant was discharged accordingly; he completed 1 year, 11 months, and 13 days of net service with 385 days of lost time. 12. On 28 January 1977, he applied to appear before the Army Discharge Review Board (ADRB); his contention was not wanting to get out and asked for rehabilitation or a suspension of board findings for six months. The applicant’s case was denied. The board considered the factors of mitigation both substantiated and unsubstantiated evidence and determined that the applicant’s characterization of discharge was proper and equitable. 13. The applicant’s record shows he completed high school and the highest rank he held was Private First Class (PFC). 14. Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 of this regulation, in effect at the time, provided for separation due to inaptitude, personality disorder, apathy and homosexuality. It provides for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. The regulation requires that separation action will be taken, when in the commander’s judgment the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier. When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record. 15. In reaching its determination, the Board can consider the applicant's petition, her service record, and her statements in light of the published guidance on equity, injustice, or clemency. 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, the frequency and nature of his misconduct and whether to apply clemency. The Board found no mitigating factors for the misconduct and the applicant provided no mitigation or post- service accomplishments or letters of reference in support of a clemency determination. Based on the preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board determined 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. 7/22/2019 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 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, as then in effect, set forth the policy for administrative separation for Soldiers due to unfitness. It provided that Soldiers 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, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted otherwise. 3. AR 635-200 (Active Duty Enlisted Administrative Separations) provides for the separation of enlisted personnel, it provides: a. 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. 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. 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 (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court- martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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 based on equity, injustice, or clemency grounds, BCM/NRs 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.