ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 May 2019 DOCKET NUMBER: AR20190002194 APPLICANT REQUESTS: * upgrade his under other than honorable conditions discharge to honorable * permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Four letters of support FACTS: 1. The applicant did not file within the three year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 was never arrested and did not commit any crimes; he was a good Soldier who followed orders and got along with both peers and superiors. He contends his discharge was unjust. 3. The applicant provides four letters of support, which essentially state, for many years, the applicant has been known for his poodles and the manner in which he handles dogs. As the owner of a pet parlor, and its master groomer, his business has expanded into several grooming establishments, as well as a grooming school. In addition, he breeds poodles and has donated pure-bred poodles to deserving families. The applicant has also been a handler in dog show competitions; one of the dogs he handled became a grand champion. The applicant has been competition judge, hosted television and radio shows, and published a grooming book. He has shown himself to be a kind, generous, and supportive friend. 4. The applicant's service records show: a. He enlisted into the Regular Army on 22 June 1970 for a 3-year term; he was 18 years of age. b. While undergoing advanced individual training (AIT) for military occupational specialty (MOS) 11B (Light Weapons Infantryman), the applicant submitted as DA Form 2476 (Application for Separation – Hardship or Dependency). The applicant was married and had a child; he requested a hardship discharge because the money the Army was sending his wife was not enough for her to support herself and the baby. (1) The applicant's AIT commander recommended disapproval. He stated the applicant's financial problems began prior to his enlistment, and he had voluntarily placed himself in this situation fully understanding his financial situation and the amount of money paid by the Army. (2) The separation authority denied the applicant's request, stating the evidence he provided did not meet the regulation's criteria of having enduring conditions of extreme and undue hardship. c. Orders reassigned him to another installation to complete AIT for MOS 76A (Supply Clerk). On graduation, orders reassigned him to the 2nd Infantry Division in Korea; he arrived on 14 February 1971. d. At some point prior to 21 May 1971, his chain of command promoted him to private first class (PFC)/E-3. On two occasions, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice: * 21 May 1971 – absenting himself from his place of duty for about an hour * 11 June 1971 – dereliction of duty and failure to perform his duties as a receiving clerk by falling asleep; punishment included reduction from PFC to private (PV2)/E-2 e. On 2 August 1971, the Division Psychiatrist and Division Social Worker provided a mental status evaluation of the applicant, in which they essentially affirmed the applicant displayed "passive/aggressive" behavior; in addition, he had "anti-society" attitudes, and showed no motivation to correct his behavior. He met medical retention standards and was cleared for administrative action. f. On 3 August 1971, the applicant's commander advised him via memorandum of his intent to separate him for unfitness under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). His reasons were the applicant's inability to adapt to military life, due to a failure to discipline himself psychologically, and because of his failure to comply with basic rules and regulations. On 4 August 1971, after consulting with counsel, the applicant acknowledged counsel advised him of the basis for the contemplated separation action; he waived his rights, and elected not to submit a statement in his own behalf. g. On 4 August 1971, the commander submitted his separation recommendation through the chain of command. In support of his recommendation, he stated the applicant had committed discreditable incidents with military authorities, showed an unwillingness to learn his assigned duties, displayed poor personality traits, had an established pattern of shirking, repeatedly committed petty offenses, and performed his duties in an erratic manner. The applicant's leadership had counseled him on numerous occasions; his conduct and efficiency were unsatisfactory. h. On 21 August 1971, the separation authority approved the commander's recommendation and directed the applicant's undesirable discharge under other than honorable conditions; he also ordered the applicant's reduction from PV2 to private/E-1. On 26 August 1971, he was discharged accordingly. His DD Form 214 shows he completed 1 year, 2 months and 5 days of his enlistment contract; he was awarded or authorized the National Defense Service Medal, Armed Forces Expeditionary Medal, and two marksmanship qualification badges. 5. Regarding the applicant's request for a personal appearance, AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the Board; however, a Board panel or the Director, ABCMR may authorize a request for a hearing on a case-by-case basis. 6. The applicant contends he was a good Soldier who followed orders, got along with peers and superiors, and never committed any crimes; he asserts his discharge was unjust. He provides letters of support that reflect his significant post-service accomplishments. 7. Commanders separated Soldiers for unfitness under the provisions of AR 635-212 when they showed a pattern of shirking duty and/or were involved in frequent acts of a discreditable nature. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined that there is sufficient evidence to grant partial relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found the statement and evidence of honorable post-service achievements to be compelling. The Board agreed that the applicant’s case warrants clemency in that the applicant was discharged for a solitary instance of misconduct that was pursuant to the applicant’s request for a hardship discharge; the Board found that the honorable post-service and the hardship discharge request mitigated the minor misconduct. Therefore, the Board found that the discharge was too harsh. 2. Additionally, the Board noted that the applicant served in Korea and is authorized award of the AFEM-Korea (according to the applicant’s DA Form 20) and the KDSM. 3. 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. 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: 1. 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 changing the applicant’s discharge characterization on his DD Form 214 to “Honorable.” 2. Additionally, the applicant’s DD Form 214 will be corrected by awarding the applicant the KDSM. 3. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to the personal appearance. 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 (AR) 635-212, in effect at the time, set forth the basic authority for separating enlisted personnel for reasons of unfitness or unsuitability. Paragraph 6 (Applicability) stated an individual was subject to separation under the provisions of this regulation for unsuitability when they had a character and behavior disorder or displayed a lack of appropriate interest (apathy). Soldiers who displayed a pattern of shirking duty and/or were involved in frequent acts of a discreditable nature were separated for unfitness under this regulation. 3. Special Regulation 40-1025-2 (Joint Armed Forces Nomenclature and Method of Recording Psychiatric Conditions), in effect at the time, defined character and behavior disorders as those indicative of developmental defects or pathological trends in the personality structure, with minimal subjective anxiety, and little or no sense of distress. It stated further that, in most instances, the disorder was manifested by a lifelong pattern of action or behavior ("acting out") rather than by mental or emotional symptoms. The associated categories were: * pathological personality types – maladjustment of individuals as evidenced by lifelong abnormal behavior patterns * immaturity reactions – physically adult individuals who are unable to maintain their emotional equilibrium and independence when under minor or major stress * alcoholism – character disturbance due to alcohol abuse * addiction – includes cases where the use of drugs represent much deeper character disturbances where individuals engage in antisocial behavior, stealing, or sexual assault while under the influence of drugs * primary childhood behavior reactions – serious emotional difficulties within the child that are not due to organic defects where emotional displays are carried to an extreme degree 4. AR 635-200 (Personnel Separations – Enlisted Personnel) superseded AR 635-212 in November 1972. It was revised on 1 December 1976 following settlement of a civil suit. a. The revision required the type of discharge and the character of service to be determined solely by the individual's military records during the current enlistment. Further, any separation for unsuitability based on personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry. b. In connection with these changes, a Department of the Army memorandum, dated 14 January 1977, and better known as the "Brotzman Memorandum," was promulgated. It required retroactive application of revised policies, attitudes and changes in reviewing applications for discharge upgrades based on personality disorders. c. A second memorandum, dated 8 February 1978, and better known as the "Nelson Memorandum," expanded the review policy and specified that the presence of a personality disorder diagnosis would justify an upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given. Conviction by a general court-martial or by more than one special court-martial was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge. 5. AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, states in paragraph 3-7a, 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. 6. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 7. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (BCM/NRs) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including Post Traumatic Stress Disorder (PTSD); Traumatic Brain Injury (TBI); sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 8. 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. 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, 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. 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) AR20190002194 5 1