IN THE CASE OF: BOARD DATE: 10 January 2020 DOCKET NUMBER: AR20190005947 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) 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), dated 3 March 2019 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 5 August 1971 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: a. He received a UOTHC discharge due to his immaturity and lack of understanding regarding Army processes as a newly assigned enlisted private. He was excited about his Army service and enthusiastic about serving his country. He was eager to serve in Vietnam and volunteered while others were reluctant to be drafted. He was a model Soldier for his first five months and 22 days in Augsburg, Germany. b. Despite having volunteered several times, he was not selected to serve in Vietnam. He began expressing his frustration, at times in a verbally insubordinate manner that he believes led to the events surrounding his discharge. He does not feel he was given an opportunity to be heard regarding his discharge. He opted for a discharge in hopes of enlisting in another branch that would allow him to serve to his full potential. He feels his leadership should have educated him on better courses of action as opposed to discharging him. He regrets he was unable to fulfill his three year obligation. If he could reenlist, he would develop young Soldiers, teaching them to appreciate being part of the Army and to show respect for the opportunity to defend our Nation. c. He has remained a model citizen since his discharge. He works for the State of California Department of Rehabilitation, serving others in their desire and commitment to return to work or pursue educational goals despite physical limitations. 3. The applicant enlisted in the Regular Army on 27 August 1970. 4. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniformed Code of Military Justice (UCMJ), on two occasions: * on 9 April 1971, for failing to go at the prescribed time to his appointed place of duty, on or about 6 April 1971 * on 16 April 1971, for failing to go at the prescribed time to his appointed place of duty, on or about 12 April 1971 and 13 April 1971 5. Court-martial charges were preferred against the applicant on 2 June 1971, for violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows he was charged with failing to go at the prescribed time to his appointed place of duty, on or about 24 May 1971, 27 May 1971, 1 June 1971, and 4 June 1971. There is no evidence within the applicant's service record indicating the adjudication of the court- martial charges. 6. The applicant's immediate commander issued him a Certificate of Unsuitability in accordance with Army Regulation 601-280 (Army Reenlistment Program), Section XIII. The applicant acknowledged receipt on 7 June 1971 and declined to submit a statement in his behalf. 7. The applicant underwent a psychiatric evaluation on or about 11 June 1971. The relevant mental status evaluation indicates he had the mental capacity to understand and participate in board proceedings and further rehabilitative efforts were not likely to be effective. 8. The applicant was notified on or around 25 June 1971 of his command’s intent to initiate separation actions against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), by reason of unfitness. 9. The applicant acknowledged receipt of the proposed separation notification on 25 June 1971 and acknowledged that he: * had been advised by counsel and waived consideration by a board of officers * elected not to submit statements 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 10. The applicant's commander formally recommended his discharge, on or around 25 June 1971, under the provisions of Army Regulation 635-212, paragraph 6a (1), by reason of unfitness. 11. Consistent with the chain of command's recommendation, the separation authority approved the applicant’s recommended discharge on 26 July 1971 and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 12. The applicant was discharged on 5 August 1971. The DD Form 214 he was issued shows: * he was discharged under the provisions of Army Regulation 635-212 * he was issued SPN 28B (unfitness – frequent involvement in incidents of a discreditable nature with civil or military authorities) * he was issued a UOTHC discharge * he was credited with completing 11 months and 9 days of total active service 13. The applicant applied to the Army Discharge Review Board (ADRB) on or around 17 June 1977, for an upgrade of his discharge. The ADRB denied relief by reason of the following: * evidence submitted revealed no primary criteria * there are no compelling reasons to the contrary * the mitigating factors inherent in secondary criteria were considered and found not to be factors in extenuation * the overall record includes sufficient reason for the board to deny relief 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, his record and length of service, the frequency and nature of his misconduct, court-martial charges, the separation proceedings and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct 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 :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, then in effect, 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 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. 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 administrative separation of enlisted personnel for unfitness and unsuitability. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued. 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. a. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs 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. b. 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. c. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190005947 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings 1