IN THE CASE OF: BOARD DATE: 5 March 2020 DOCKET NUMBER: AR20190002682 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) 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 22 January 2019 * Veterans Health Administration Letter from the Department of Veterans Affairs (VA), dated 2 January 2019 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, in effect, that he requests his character of service be upgraded, because per the attached VA letter, he may be eligible for health benefits. 3. The applicant enlisted in the Regular Army on 10 July 1970. He served in Germany from on or about 19 March 1971 through on or about 25 July 1971, and attained the rank/grade of specialist four/E-4. He was honorably discharged on 26 April 1972 for the purpose of immediate reenlistment in the Regular Army. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was credited with completing 1 year, 9 months and 17 days of active service this period and confirms his service was characterized as honorable. 4. The applicant reenlisted in the Regular Army on 27 April 1972. 5. The applicant accepted nonjudicial punishment (NJP) on 2 January 1973, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to report at the prescribed time to his appointed place of duty, on or about 2 January 1973. 6. The applicant's service record contains a DA Form 2496 (Disposition Form) that documents the results of his trial by special court-martial, adjudged on 11 May 1973. This forms shows he was found guilty of wrongful possession and introducing drugs and was sentenced to serve four months of confinement at hard labor. 7. The applicant was notified by his immediate commander, on 8 June 1973, that he was being considered for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, for unfitness – shirking. The commander included a statement showing the following discreditable acts: * 1 Jun 73 - for refusing to participate in team detail, and for smoking in formation * 4 Jun 73 - for not participating in drill and ceremony (D&C) class, and for lying on a bunk during duty hours * 5 Jun 73 - for being absent from retreat formation * 6 Jun 73 - for being unshaven at work call inspection and for being unprepared for daily inspection * 7 Jun 73 - for being in bed an hour after being awakened, and for not preparing for inspection 8. The applicant consulted with counsel on 20 June 1973 and was advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, Chapter 13, for unfitness. He acknowledged his understanding that he could encounter substantial prejudice in civilian life, in the event an under honorable conditions (general) discharge was issued to him. He further understood, as the result of issuance of an undesirable discharge, under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life. He was further advised of his right to: * be represented by counsel * submit statements in his own behalf, he did not submit a statement * to have his case heard by a board of officers, he waived this option * to have a personal appearance before a board of officers, he waived this option * obtain documents to be presented to the separation authority * waive any of these rights * withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge 9. The applicant's immediate commander formerly recommended the applicant's separation from service on 20 June 1973, under the provisions of Army Regulation 635-200, paragraph 13-5, by reason of unfitness and an established pattern of shirking. He including the following statement with his recommendation: Recommend [applicant] be discharged from the service as unfit because of an established pattern of shirking. Discharge for unsuitability is not deemed appropriate because his behavior is not due to an inability to satisfactorily perform within the meaning of unsuitability. His records reflect that his highest rank has been Spec 4 and he has one special court-martial and one punishment under Article 15 of the UCMJ. Since assignment to the Retraining Brigade, [applicant] has continued his pattern of unacceptable behavior and has received nine adverse observation reports descriptive of shirking and a negative attitude. He has demonstrated a disregard for military authority and continually indicates no desire for returning to duty. It is obvious that his primary objective is to be eliminated from the military service by any means. In my opinion, this man possesses the mental and physical ability necessary to be an effective Soldier; however, his present attitude and established pattern of shirking preclude the desirability of his retention. He has received extensive counseling by members of the leadership teams, the unit social worker, and members of the professional staff agencies but has not responded to their efforts. It is anticipated that further correctional intervention will be unsuccessful. 10. The applicant intermediate commander also recommended approval of the applicant's discharge on 20 June 1973. 11. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 20 June 1973, under the provisions of Army Regulation 635-200, Chapter 13, by reason of unfitness and directed that he receive a DD Form 258A (Undesirable Discharge Certificate). He also noted further rehabilitative requirements were waived. 12. The applicant was discharged on 22 June 1973. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, Chapter 13. His DD Form 214 confirms he was issued an Undesirable Discharge Certificate and his service was characterized as UOTHC. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, and the character and reason for his separation. The Board noted the facts presented above. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 2. After reviewing the application and all supporting documents, the Board found that relief is 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. 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. 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 basic authority 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 an under honorable conditions (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 the time, contained the policy and outlined the procedures for separating individuals for unfitness. It provided 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 an honorable or a general discharge. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190002682 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190002682 6 ABCMR Record of Proceedings (cont) AR20190002682 5