ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 September 2019 DOCKET NUMBER: AR20190006875 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) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 17 April 1969 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 would like his discharge upgraded so he can qualify for Department of Veterans Affairs (VA) medical services and benefits. 3. The applicant enlisted in the Regular Army on 28 March 1968. 4. Before a special court-martial on 27 August 1968, at Fort Hood, TX, the applicant was found guilty of being absent without leave (AWOL) from on or about 25 July through on or about 27 July 1968, and from on or about 29 July through on or about 19 August 1968. The court sentenced him to perform hard labor without confinement for one month. 5. Before a special court-martial on 1 November 1968, at Fort Hood, TX, the applicant was found guilty of being AWOL from on or about 23 September through on or about 25 September 1968, from on or about 30 September through on or about 22 October 1968, and from on or about 22 October through on or about 24 October 1968. The court sentenced him to confinement at hard labor for six months and forfeiture of $68.00 pay per month for six months. 6. The applicant was notified on 4 March 1969 of his immediate commander'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 for military service. 7. The applicant acknowledged receipt of the proposed separation notification on 4 March 1969 and acknowledged that he: * had been afforded the opportunity to be represented by counsel * 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 8. The applicant's commander formally recommended his discharge on 6 March 1969, under the provisions of Army Regulation 635-212, based on unfitness. 9. Before a special court-martial on 4 March 1969, at Fort Hood, TX, the applicant was found guilty of being AWOL from on or about 6 January through on or about 17 February 1969, and from on or about 21 February through on or about 28 February 1969. The court sentenced him to confinement at hard labor for five months and reduction to the rank/grade of private/E-1. 10. The applicant underwent a mental status evaluation on 12 March 1969, which found him mentally responsible and able to participate in board proceedings. 11. The separation authority approved the applicant’s recommended discharge on 8 April 1969 and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 12. The applicant was discharged on 17 April 1969, under the provisions of Army Regulation 635-212, and his service was characterized as UOTHC. 13. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the applicant did not complete a full enlistment, had no wartime service, no meritorious personal awards and insufficient evidence of mitigating circumstances for the misconduct. The Board agreed that the applicant’s discharge characterization as reflected on his DD Form 214 is appropriate. 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. 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 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) AR20190006875 4 1