ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings BOARD DATE: 9 July 2019 DOCKET NUMBER: AR20190004250 APPLICANT REQUESTS: The applicant the next of kin of the former service member (FSM) requests, in effect, an upgrade of the FSM’s undesirable discharge. 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) * Standard Form 180 (Request Pertaining to Military Records) * National Personnel Records Center letter dated 15 February 2019 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 he wants a copy of the FSM’s DD Form 214 with an honorable discharge. He has a document stating the FSM already has already had the discharge changed. He is enclosing the document that he has with the change. 3. The applicant provided a request pertaining to military records that states, in pertinent part, “My DE-214 was upgraded to honorable discharge. Please send me a copy of the corrected DD-214”. 4. On 6 December 1966, the FSM enlisted in the Regular Army for a period of 3 years. He served in the Republic of Vietnam from on or about 25 May 1967 to 3 February 1968. 5. A review of the FSM’s record shows he was: * absent without leave (AWOL) from 22 April to 19 May 1968 * AWOL from 22 December 1968 to 19 January 1969 * confined from on or about 3 February to 23 March 1969 * AWOL from 5 May to 3 June 1969 * confined from 4 to 17 June 1969 * confined from 18 June to 9 September 1969 6. The FSM received non-judicial punishment, under Article 15, Uniform Code of Military Justice, on 3 separate occasions, for being AWOL on 2 occasions and failing to be at his appointed place of duty. 7. The FSM was convicted by courts-martial on 3 separate occasions. He pled guilty and was found guilty of being AWOL from on or about: * 22 April to 20 May 1968 * 22 December 1968 to 20 January 1969 * 5 May to 4 June 1969 8. On 14 July 1969, his commander recommended he be discharged under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness. The recommendation was based on the FSM’s habits and traits of character manifested by repeated commission of petty offenses, particularly AWOL, habitual shirking, and resentment toward authority. The commander indicated the FSM had been counseled numerous times and further rehabilitation attempts would be futile. His chain of command recommended approval of his discharge from the Army with an Undesirable Discharge Certificate. 9. On 16 July 1969, after being advised by counsel of the basis for the contemplated separation action under the provisions of Army Regulation 635-212 for unfitness, and the rights available to him, the FSM waived: * consideration of his case before a board of officers * a personal appearance before a board of officers * representation by military or civilian counsel 10. The FSM was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits. He was afforded the opportunity to submit statements in his own behalf, but he declined to do so. 11. A medical examination and psychiatric evaluation medically cleared the FSM for administrative separation. 12. On 29 August 1969, the separation authority approved the recommendation and directed the FSM be furnished an Undesirable Discharge Certificate. 13. On 10 September 1969, the FSM was discharged under the provisions of AR 635- 212 with an undesirable discharge. He completed 2 years, 1 month, and 12 days of net active service. He had 233 days of lost time. His DD Form 214 also shows an “under conditions other than honorable” character of service, separation program number (SPN) 386 (unfitness, established pattern of shirking), and he was awarded or authorized the: * National Defense Service Medal * Vietnam Service Medal * Vietnam Campaign Medal 14. Army Regulation 635-212 set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability. This regulation provided that members would be discharged by reason of unfitness when their records were characterized by one or more of reasons to include an established pattern of shirking. An undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge. 15. Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed the separation documents that would be furnished to each individual who was separated from the Army. The SPN is used in statistical accounting to represent the specific authority and reason for separation. At the time the SPN 386 was authorized for separations under the provisions of Army Regulation 635-212 with the following associated narrative reason: "Unfitness – an established pattern of shirking.” 16. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), states that: a. An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. b. A general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 17. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully consider the applicant’s request, supporting documents, evidence in the records and published DOD guidance for consideration of discharge upgrade requests. The Board considered the Soldier’s service record, service in Vietnam, frequency and nature of the misconduct and whether to apply clemency. The Board found insufficient mitigating factors in the record and the applicant provided no evidence of in-service mitigation or post-service references or accomplishments in support of a clemency determination. After due consideration, the Board determined that the character of service the applicant received 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. X 7/18/2019 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. Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability. This regulation provided that members would be discharged by reason of unfitness when their records were characterized by one or more of reasons to include an established pattern of shirking. An undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge. 3. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, provided the criteria governing the issuance of honorable, general, and undesirable discharge certificates. This regulation provided that: a. An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. b. A general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge 4. Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed the separation documents that would be furnished to each individual who was separated from the Army. The SPN is used in statistical accounting to represent the specific authority and reason for separation. At the time the SPN 386 was authorized for separations under the provisions of Army Regulation 635-212 with the following associated narrative reason: "Unfitness – an established pattern of shirking.” 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 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. 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.