BOARD DATE: 18 July 2019 DOCKET NUMBER: AR20190005444 APPLICANT REQUESTS: The applicant requests an upgrade of his under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Report of Transfer or Discharge) * Report of Psychiatric Examination 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 would like his discharge to read that he was separated under honorable conditions. He agrees that more than 53 years ago he stated he did not care what type of discharge he left [the Army] with, but now that time has passed and he does care. He feels that he should be able to have an honorable discharge. He was taking care of his parents and family. He was stressed. He wanted to serve, but he had too many obligations. He was under a lot of pressure. He served his country honorably while he was enlisted. He apologizes for his actions when he was young and stupid. 3. On 12 February 1964, the applicant was inducted in the Army of the United States. 4. He received non-judicial punishment on two separate occasions for being derelict in the performance of his duties. The applicant was found sleeping on three different occasions during a course of instruction and failed to turn in his rifle upon completion of guard duty, and left it unattended on his bunk. 5. On 27 August 1964, a Report of Psychiatric Examination shows: a. The applicant had no disqualifying mental defects, nor disqualifying physical defects, as indicated by a review of all available clinical and health records, sufficient to warrant a medical separation or discharge. b. The applicant was mentally responsible both to distinguish right from wrong and to adhere to the right, and he had sufficient mental capacity to understand board proceedings and cooperate in his own defense if such was necessary. There were no psychiatric contradictions to any administrative action deemed appropriate. c. Further rehabilitative efforts would not help the applicant, and it was recommended that he be separated from the service expeditiously under the provisions Army Regulation (AR) 635-209 (Personnel Separations, Discharge, Unsuitability) paragraph 3c. 6. On 3 September 1964, the applicant's unit commander notified him that he was initiating action to separate him under the provisions of AR 635-209 for unsuitability. The commander cited the applicant's very poor adjustment throughout his career in the service, lack of appropriate interest, and defective attitudes as the reasons for the proposed separation action. After consulting with counsel, the applicant waived consideration of his case by a board of officers and representation by counsel. a. He elected not to submit a statement in his own behalf. b. A Bar to Reenlistment was approved and imposed against the applicant, and his chain of command recommended approval of his discharge. c. The separation authority approved the recommendation for separation under the provisions of paragraph 3c, AR 635-209, and directed that the applicant be issued a general discharge, under honorable conditions. 7. On 19 November 1964, the applicant was discharged accordingly. The separation program number (SPN) shown on his DD Form 214 is 46A (unsuitability, apathy, defective attitudes and inability to extend effort constructively). He completed 9 months and 8 days of net active service that was characterized as under honorable conditions. He was not awarded a personal decoration. 8. The applicant's record is void of any medical treatment records or other documents indicating that he was suffering from a mental condition at the time of his discharge. 9. Army Regulation 635-209, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unsuitability. Paragraph 3c provided that an individual was subject to separation for unsuitability based on apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively. When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record. This same regulation provided that when the discharge was based on unsuitability - apathy, defective attitudes and inability to expend effort constructively, then SPN 46A would be used. 10. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. 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. 11. In reaching its determination, the Board can consider the applicant’s petition and his service record 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 considered the applicant’s statement, his overall service, the frequency and nature of his misconduct and whether to apply clemency. The Board found no mitigating factors for the misconduct and the applicant provided no post- service accomplishments or letters of reference in support of a clemency determination. Based on the preponderance of evidence, the Board determined that the character of service the applicant received at separation 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. 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 635-209 (Personnel Separations, Discharge, Unsuitability), then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unsuitability. Paragraph 3c provided that an individual was subject to separation for unsuitability based on apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively. When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record. This same regulation provided that when the discharge was based on unsuitability - apathy, defective attitudes and inability to expend effort constructively, then SPN 46A would be used. 3. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. 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. 4. 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. ABCMR Record of Proceedings (cont) AR20190005444 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190005444 6 ABCMR Record of Proceedings (cont) AR20190005444 4