ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 June 2019 DOCKET NUMBER: AR20190003044 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 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), with self-authored statement, dated 16 November 2018 * DD Form 214 (Report of Separation from Active Duty), for the period ending 3 March 1975 * two character reference letters 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: a. He is deeply regretful that he didn’t complete his military term. He truly enjoyed being in the U.S. Army. He left the service early because when his father and brother both passed away, the grief seemed to take over his life. He fell hard into drugs and even found himself doing drugs with his sergeant and other Soldiers in the Armory, to cope with his loss. He became very depressed and felt he didn’t get the help he needed from the military. b. He turned to drugs to block things out. While on drugs, he lost respect for himself and his military family but was never offered help. He enjoyed being a gunner for the 81 millimeter squad and can proudly say he was in the U.S. Army. He wishes the military would have given him more help so he could have fulfilled his dream and passion with the military. c. He still feels, 45 years later, that his military family didn't support him enough through his crisis. In his heart and mind, he still does military things, in his everyday life and wishes his discharge would be upgraded. He wrote this letter with tears falling from his eyes, due to being ashamed of his failure. He is a good man; he just didn't know how to cope with the loss of his father and brother when he was 17. He has forgiven himself and he is asking the military to forgive him as well. He wanted to explain his actions and ask that he may be entitled to some military rights, as he did serve and was exposed to different gases in training and removed his gas mask. He is now 64 years old and has medial issues and is asking for help and forgiveness. 3. The applicant enlisted in the Regular Army on 11 January 1973. 4. The applicant accepted nonjudicial punishment (NJP) on 18 October 1973, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for absenting himself from his place of duty from on or about 0715 hours, 15 October 1973, through on or about 0715 hours,16 October 1973. 5. The applicant’s service record shows: a. He was counseled by his platoon sergeant on at least 5 occasions between 14 June 1974 and 8 July 1974, for poor appearance and attitude, being late to his assigned place of duty, and being absent from his place of duty. b. He received a statement of counseling from his immediate commander on 12 August 1974 for being absent without leave (AWOL) and his duty performance. c. He received another statement of counseling from his immediate commander on 15 September 1974 for being AWOL. 6. The applicant was tried before a summary court-martial on or about 12 September 1974, at Fort Lewis, WA, and was convicted of being AWOL from on or about 13 August 1974 through on or about 29 August 1974, and from on or about 5 September 1974 through on or about 9 September 1974. His sentence included his reduction to the rank/grade of private/E-1 and 20 days of confinement at hard labor. The sentence was approved and ordered executed on 12 October 1974. 7. The applicant underwent mental status evaluations on two separate occasions, on 5 November 1974 and 2 January 1975. The relevant DA Forms 3822-R (Report of Mental Status Evaluation) show he received mental status evaluations for unfitness. These reports further show he had no significant mental illness, was mentally responsible, could distinguish right from wrong, was able to adhere to right and wrong, and had the mental capacity to understand and participate in board proceedings. He also met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness). 8. The applicant’s commander initiated a DA Form 4126-R (Bar to Enlistment/ Reenlistment Certificate) on 5 November 1974. The applicant acknowledged receipt of the bar recommendation on 6 November 1974. The applicant's battalion commander recommended approval of the bar; however, the final approval is missing from the record. The bar recommendation was based on the applicant's: * Company Grade Article 15 on 18 October 1973 * two warrants for his arrests, dated on 26 December 1973 and 18 January 1974 * Summary Court-Martial conviction on 12 October 1974 9. The applicant accepted NJP in December 1974, under the provisions of Article 15 of the UCMJ, for wrongfully possessing a controlled substance (marijuana), on or about 26 September 1974. His punishment included confinement for 7 days. 10. The applicant was notified by his immediate commander on 2 January 1975 that he was initiating actions to separate him from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, for unfitness due to his frequent incidents of a discreditable nature. The applicant acknowledged the commanders proposed separation. 11. The applicant was counseled by his commander on 3 January 1975 for his responsibilities as a Soldier, his performance, the effects of Chapter 13 discharge, and his use of drugs. 12. The applicant's commander formally recommended the applicant's separation from service on 3 January 1975, prior to the expiration of his term of service, under the provisions of Army Regulation 635-200, Chapter 13, for unfitness due to his frequent incidents of a discreditable nature. He noted in his recommendation that the applicant had been of counseled on four separate occasions and had three rehabilitative attempts [transfers]. 13. The applicant accepted NJP on 6 January 1975, under the provisions of Article 15 of the UCMJ, for being drunk on duty, on or about 31 December 1974. 14. The applicant’s immediate commander submitted a statement on 17 January 1975 to support his request for the applicant's separation under the provisions of Army Regulation 635-200, Chapter 13. He stated the following: I have been the company commander of [the applicant] since December 1974. During this period, he has constantly been a problem to his chain of command, with particular reference to his attitude and appearance. Also, he has received a company grade Article 15 in December 1974 for possession of marihuana and a field grade Article 15 in January for being intoxicated on duty. Under his former commander, he received an Article 15 for AWOL in October 1973, and in October 1974, he was court-martialed for six counts of AWOL. [The applicant] has been counseled extensively by his chain of command and by myself on two occasions, 9 Dec 74 and 1 Jan 75, for duty performance and drug abuse. He poses a constant administrative problem and his chronic lateness and absences cause tremendous leadership problems in his chain of command. He has not responded to counseling or corrective custody. His hostile attitude and extremely poor appearance have infected any platoon to which he has been assigned. His continued presence in this unit is detrimental to the morale and discipline of the rest of the company. It is in the best interest of the service that [the applicant] be discharged under the provisions of AR 635-200, Chapter 13, as soon as possible. 15. The applicant consulted with counsel on 20 January 1975 and was advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, Chapter 13. He was further advised of his right to: * be represented by counsel * submit statements in his own behalf [he did not make any statements] * to have his case heard by a board of officers * obtain documents to be presented to the separation authority * waive any of these rights [he elected to waive all rights] * withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge 16. The applicant’s former commander submitted the following statement in support of the applicant's separation under the provisions of Army Regulation 635-200, Chapter 13. He stated the following: I was [the applicant’s] Company Commander for a period of approximately 12 months. When I initially took over the Command, he had been involved in an attempt to leave the service by rendering statements to his previous Commander for acts involving homosexuality. These statements were untrue and CID subsequently found the [applicant] guilty of rendering false official statements. [The applicant] was in the 81mm mortar platoon and continued to be an individual who required constant counseling in order to accomplish the simplest tasks. In October he was Court-Martialed for six counts of AWOL. He was a constant control and discipline problem within my Command up until 2 Dec 74. In view of the constant counseling and deterrent effect [the applicant] has had on the Company, to include his peers, I feel very strongly that he should be separated from the US Army UP of AR 635-200, Chapter 13. 17. The applicant's intermediate commander recommended approval of his separation, on 3 February 1975. He stated [the applicant] had constantly shown disrespect and disregard for authority. Despite the continuous supervision of his chain of command, his conduct remains utterly unsatisfactory. His hostile attitude toward the chain of command and his peers is a continuing source of irritation and a threat to the success and welfare of his unit. 18. The applicant’s brigade commander recommended approval of his separation under the provisions of Army Regulation 635-200, chapter 13-5a, unfitness, on 7 February 1975. He stated [the applicant] had demonstrated an inability and lack of desire to assume responsibility for his actions, as evidenced by numerous counseling sessions by his chain of command, several Article 15's and a previous court-martial conviction and should be discharged at the earliest possible date. 19. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge, by reason of unfitness and directed that he receive DD Form 258A (Undesirable Discharge Certificate). 20. The applicant was discharged on 3 March 1975. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a (1). His DD Form 214 confirms he was issued an Undesirable Discharge Certificate and his service was characterized as UOTHC. 21. The applicant provides two letters of support from his daughter and granddaughter, stating he: * wanted to become a family man after he lost his father an brother * was married and became a stepfather, but later turned into her father * worked at a nursery until he decided to start his own lawn and landscaping businesses in NC and GA, that lasted 11 years * is a loving and caring father, grandfather and great grandfather * has several medical issues that requires care * suffers from depression, anxiety and alcohol dependency * explained his time in the jungle and his agent orange to his granddaughter 22. The Board should consider the applicant's 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 his misconduct, the statements in his separation documents, the statements of support he provided pertaining to his post-service behaviors and achievements and whether to apply clemency to his request. The Board determined that there were insufficient mitigating factors to overcome his misconduct and that the character of service he received at the time of discharge 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. 6/19/2019 X J 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): N/A 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.