IN THE CASE OF: BOARD DATE: 12 July 2019 DOCKET NUMBER: AR20190003042 APPLICANT REQUESTS: The applicant request his general discharge be upgraded to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Review of Discharge or Dismissal from the Armed Forces) 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 while on active duty he suffered as a result of his ethnicity. His unit was full of trouble makers with daily fighting going on among Soldiers. Both Black and White races were mean to the Puerto-Ricans; he also had trouble with the local Germans. He is now in need of medical assistance. He worked but is wheel chair bound and needs disability benefits. He served for almost two years. He avoided trouble but was 17 years old and weighed only 155 lbs. He was also willing to go to combat but was never sent. As a result of his conditions, he needs medical help. 3. On 5 November 1964, the applicant was inducted in the Army of the United States at the age of 18 for two years. 4. On or about 25 February 1965 to on or about 6 August 1966 the applicant received non-judicial punishment (NJP) on four separate occasions for: * Failing to go at the prescribed time to his appointed place of duty * Absenting himself from his unit without proper authority twice * Disorderly in quarters * Drunk and disorderly in quarters 4. On 8 February 1966, he underwent a Summary Court-Martial (SCM) and was found guilty for leaving his appointed place of duty without proper authority; failing to go at the prescribed time to his place of duty; failing to obey a lawful order by not report to duty. 5. On 10 February 1966, the applicant’s commander initiated a bar to reenlistment on the applicant. a. The commander counseled the applicant on numerous occasions and had advised him of the adverse consequences which might ensue from this or similar personnel actions. Rehabilitation to date has failed. b. The commander wrote a statement listing the applicant’s NJP, the SCM he underwent, and his conduct unbecoming of a Soldier which included his unsatisfactory duty performance, his general attitude toward his supervisors, his shirking of duties, and several incidents of minor misconduct. He was constantly being corrected for failing to maintain acceptable standards. c. The applicant acknowledged he was counseled and advised of the basis for the action recommended. He was also advised of the type of discharge he may receive and did not desire to submit a statement on his own behalf. 6. On 14 February 1966, the Summary-Court Martial was adjudged and he was sentenced to confinement at hard labor for thirty days; reduction to the grade Private (E1) and forfeiture of $20.00 for one month. 7. On 7 March 1966, the applicant’s bar to reenlistment was approved. 8. On 4 November 1970, the applicant was discharged upon his expiration of term of service (ETS) from the standby reserve and given a general discharge. He served 1 year, 10 months, and 27 days total active service. 9. Army Regulation 601-280 (Total Army Retention Program) governed bars to reenlistment at the time in question. Essentially, this regulation provided that a Soldier could be barred from reenlisting based on specific incidents of substandard performance and that any commander in the Soldier’s chain of command may initiate a bar to reenlistment. Procedurally, the regulation required that a bar to reenlistment certificate be prepared and referred to the Soldier so he or she can submit a statement on his or her own behalf. Each member of the chain of command must then endorse the bar to reenlistment to the proper approval authority. The regulation required that the approval authority for a Soldier with less than 10 years' active Federal service at date of bar initiation must be personally approved by the first commander in the rank of lieutenant colonel or above in the Soldier's chain of command, or the commander exercising Special Court Martial Convening Authority, whichever is in the most direct line to the Soldier (unless this is the same commander who initiated the action). The personal signature of the approving or disapproving authority is required. The regulation also provided that the Soldier may appeal the bar to reenlistment and that final approval of appeals will be at least one approval level higher than the original bar approval authority. 10. The applicant states while on active duty he suffered as a result of his ethnicity. Both Black and White races were mean to the Puerto-Ricans; he also had trouble with the local Germans. He is now in need of medical assistance. He worked but is wheel chair bound and needs disability benefits. He served for almost two years. His DD Form 214 shows in the Transfer or Discharge Data section, the applicant was transferred to the USAR on 4 November 1966 to complete his reserve obligation. His record shows the highest rank he held was Private First Class (PFC). 11. The applicant requests an upgrade so that he may receive benefits. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits. 12. 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. 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, the Bar to Reenlistment, the reason for his separation and his statement at the time and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a 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 found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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 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. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets policies, standards and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. It states Soldiers who are precluded from retention for any reason will not be retained beyond the last day of the month in which their expiration term of service (ETS) falls. They will not be retained beyond the last day of the month in which their RCP falls. 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. 3. Army Regulation 601-280 (Total Army Retention Program) governed bars to reenlistment at the time in question. Essentially, this regulation provided that a Soldier could be barred from reenlisting based on specific incidents of substandard performance and that any commander in the Soldier’s chain of command may initiate a bar to reenlistment. Procedurally, the regulation required that a bar to reenlistment certificate be prepared and referred to the Soldier so he or she can submit a statement on his or her own behalf. Each member of the chain of command must then endorse the bar to reenlistment to the proper approval authority. The regulation required that the approval authority for a Soldier with less than 10 years' active Federal service at date of bar initiation must be personally approved by the first commander in the rank of lieutenant colonel or above in the Soldier's chain of command, or the commander exercising Special Court Martial Convening Authority, whichever is in the most direct line to the Soldier (unless this is the same commander who initiated the action). The personal signature of the approving or disapproving authority is required. The regulation also provided that the Soldier may appeal the bar to reenlistment and that final approval of appeals will be at least one approval level higher than the original bar approval authority. 4. Army Regulation 601-280 further provides that the proper unit commander will review approved bars to reenlistment at least three months after the date of approval. If the commander feels the bar to reenlistment should remain, the entry "Bar to Reenlistment reviewed; not recommended for removal, (date)" will be made on the Soldier's DA Form 2-1 (Personnel Qualification Record). 5. 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. ABCMR Record of Proceedings (cont) AR20190003042 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190003042 6 ABCMR Record of Proceedings (cont) AR20190003042 4