ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 July 2019 DOCKET NUMBER: AR20190005942 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to 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) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 9 May 1972 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 he was told/promised his discharge would be upgraded to honorable within six months; however, this did not happen. 3. The applicant was inducted into the Army of the United States on 10 May 1971. 4. Before a special court-martial on or about 1 September 1971, at Fort Polk, Louisiana, the applicant was found guilty of four specifications of unlawfully striking and shoving three Soldiers, on or about 7 and 8 August 1971. His sentence included confinement at hard labor for four months and forfeiture of pay for four months. 5. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * on 7 December 1971, for failure to obey a lawful order, on or about 2 December 1971 * on 7 December 1971, for failure to go at the time prescribed to his appointed place of duty, on or about 4 December 1971 * on 9 December 1971, for failure to obey a lawful order, on or about 7 December 1971 * on 13 December 1971, for being disrespectful in language towards another Soldier, on or about 3 December 1971 * on 17 December 1971, for being derelict in the performance of duty, on or about 15 December 1971 * on 5 January 1972, for breaking restriction, on or about 11 December 1971 * on 6 January 1972, for being absent without leave (AWOL), from on or about 3 January through on or about 4 January 1972 6. The applicant's commander notified the applicant on 11 January 1972 of his intent to initiate actions to separate him from service under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). 7. The applicant's commander formally recommended his discharge on the same date, under the provisions of Army Regulation 635-212, based on unfitness, due to frequent incidents of a discreditable nature with military authorities. 8. The applicant consulted with counsel on 13 January 1972 and was advised of the basis for the contemplated actions to separate him from service under the provisions of Army Regulation 635-212, by reason of unfitness. After consulting with counsel, the applicant acknowledged receipt of the proposed separation notification and requested consideration of his case by a board of officers. He further acknowledged that he: * did not intend to submit a statement in his own behalf * may be deprived of many rights and benefits as a Veteran under both Federal and State law * may encounter substantial prejudice in civilian life if he were issued a general discharge 9. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on the following dates for the indicated offenses: * on 13 January 1972, for being disrespectful in deportment to his superior non- commissioned officer (NCO), on or about 14 December 1971 * on 18 January 1972, for breaking restriction, on or about 14 January 1972 10. An administrative separation board was convened on 3 March 1972. After careful consideration of the applicant’s case, the Board recommended his discharge for unsuitability and the issuance of a general discharge. 11. Before a summary court-martial on 7 April 1972, at Fort Leonard Wood, Missouri, the applicant was found guilty of stealing the property of another Soldier, on or about 24 March 1972. He was sentenced to confinement at hard labor for 30 days and forfeiture of pay for one month. 12. The separation authority accepted the separation board's recommendation and approved the recommended discharge on 28 April 1972, and directed the issuance of a General Discharge Certificate. 13. The applicant was discharged on 9 May 1972. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-212 and his service was characterized as under honorable conditions. 14. 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 considered the applicant’s statement, the frequency and nature of his misconduct and whether to apply clemency. The Board found no evidence of mitigation in the records and the applicant provided no post-service accomplishments or letters of reference in support of clemency. The Board noted no policy for automatic upgrades of discharges. The Board determined, based on the preponderance of evidence, 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 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 (Personnel Separations – Enlisted Personnel), then in effect, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. 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 clearly inappropriate. b. Paragraph 1-9e provided that a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. Army Regulation 635-212, then in effect, provided the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability. It provided, in pertinent part, 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 a general or an honorable discharge. 4. 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. ABCMR Record of Proceedings (cont) AR20190005942 4 1