ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 October 2019 DOCKET NUMBER: AR20190009163 APPLICANT REQUESTS: The applicant, in essence, requests an upgrade of his under other than honorable conditions discharge (Undesirable Discharge Certificate) to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record) * Special Orders (SO) Number 033, dated 2 February 1976 * DD Form 214 (Report of Separation from Active Duty) for period ending 18 February 1976 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 was supposed to receive a General Discharge Certificate but he received an Undesirable Discharge Certificate after being discharged (referencing SO Number 033 paragraph 3955). Two weeks prior to his discharge he was advised that he would receive a general discharge. He received several Article 15s, under the Uniform Code of Military Justice (UCMJ) due to chronic alcohol abuse. He never received any assistance for his problem with drugs and alcohol, which resulted in almost 30 years of continued use after he was discharged. 3. On 22 April 1974, at the age of 18 years old, the applicant enlisted in the Regular Army for a term of 2 years. 4. His record shows he accepted nonjudicial punishment (NJP) on: * 12 August 1974 for violating a lawful general regulation by possessing marijuana (alleged) * 21 October 1974 for disobeying a lawful order from a noncommissioned officer (NCO), on two occasions; he appealed and the appeal was denied * 6 December 1974 for failing to obey a lawful general regulation by possessing a switchblade knife and for being disrespectful to his superior NCO by saying to him "You MFs (expletive) are not going to take any of my s_" (expletive); he appealed and the appeal was denied * 13 January 1975 for being absent without leave (AWOL): from 22 December 1974 until 23 December 1974, from 1800 hours, 23 December 1974 until 2000 hours, 23 December 1974, from 26 December 1974 until 27 December 1974, and from 1800 hours, 26 December 1974 until 2000 hours, 26 December 1974, and for breaking restriction on two occasions; he appealed and his appeal was granted and all privileges and property were restored * 28 March 1975 for failing to go at the time prescribed to his appointed place of duty on two occasions; he appealed and the appeal was denied * 2 April 1975 for breaking restriction * 6 June 1975 for being AWOL from his appointed place of duty on three occasions: on 3 May 1975, 4 May 1975, and 5 May 1975 and failing to obey a lawful order from an NCO * 29 September 1975 for failing to obey a lawful order from a commissioned officer on two occasions and failing to go at the time prescribed to his appointed place of duty on two occasions; he appealed and the appeal was denied * 16 October 1975 for: * being AWOL from 2 September 1975 until 26 September 1975 * failing to go at the time prescribed to his appointed place for duty on three occasions * disobeying a lawful command from a commissioned officer * violating a lawful general regulation by wrongfully possessing a ration control card made out in the name of another person * disobeying a lawful order by a NCO * wrongfully possessing, with intent to deceive a DA Form 31 (Authority for Leave) * violating a lawful general regulation by wrongfully possessing a stiletto type knife * wrongfully communicating a threat to a NCO that something may happen to him while he was off-post 5. On 4 March 1975, he was convicted by summary court-martial one specification of failing to go at the time prescribed to his appointed place of duty. He was sentenced to reduction to private E-1 and restriction for 60 days. On 31 March 1975, the sentence was approved. 6. The applicant was counseled on five occasions during the period 18 October 1974 to 28 May 1975 for, but not limited to, failing to get out of bed after receiving a lawful order; his deteriorating conduct, efficiency, and attitude; relinquishing his identification card to a German taxi driver because he did not have the proper fare to pay him; and for not performing his duties in the platoon. 7. The alcohol and drug abuse control program (ADAPCP) admission information, dated 20 June 1975, shows he self-referred himself into the program. The individual patient data system intake record shows he abused alcohol, heroin, amphetamines, hallucinogens (LSD type), hashish, marijuana, and sleeping pills. The individual patient data system - ADAPCP follow-up record, dated 4 August 1975, reveals the applicant was a rehabilitation failure. 8. His record contains six statements or certificates during the period 30 September 1975 to 5 October 1975 regarding his negative conduct, disregard for discipline and morale of the unit, indebtedness, and lack of motivation. His pass privileges were revoked on four occasions for his misconduct. 9. On 30 September 1975, the applicant’s immediate commander notified the applicant that he was initiating separation actions against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13 for unfitness. 10. The applicant acknowledged he had been notified of the pending separation action against him and he had been advised by counsel of the basis for the contemplated action, understood his rights, requested consideration of his case before a board of officers, and elected to not submit a statement in his own behalf. 11. The immediate commander stated in his recommendation for elimination that the applicant was specifically recommended for unfitness because of frequent incidents of a discreditable nature with civil or military authorities under AR 635-200, paragraph 13- 5a(1). The chain of command recommended approval of the separation. 12. In connection with his administrative separation proceedings the applicant underwent a medical status evaluation and a medical examination; both cleared the applicant for separation. 13. On 2 December 1975, the applicant was referred to the board and acknowledged receipt of the notice to appear before the board. On 2 January 1976, the board convened and found the applicant had frequent incidents of a discreditable nature with civil or military authorities. The board recommended that he be discharged with an Undesirable Discharge Certificate. The case was legally reviewed by the Office of the Staff Judge Advocate and was found to have no legal objection to approving the discharge. 14. On 26 January 1976, the appropriate separation authority approved the board’s findings and recommendations, approving the discharge, and directed the applicant be issued an Undesirable Discharge Certicate and be reduced to the lowest grade, private E-1. 15. On 18 February 1976, the applicant was discharged under the provisions of AR 635-200, paragraph 13-5a(1), unfitness – frequent incidents of a discreditable nature with civil or military authorities. His service was characterized as under other than honorable conditions. He completed 1 year, 9 months, and 3 days of total active service. His DD Form 214 shows: * He was awarded or authorized the National Defense Service Medal * He had 24 days of time lost 16. The applicant provides: * DD Form 293, as discussed above * Special Orders (SO) Number 033, dated 2 February 1976, shows he was discharged under AR 635-200, Chapter 13, paragraph 13-5a(1) and he received an Undesirable Discharge Certificate, Department of Defense Form 258A, upon separation * DD Form 214 for period ending 18 February 1976, as discussed above 17. The applicant states he was supposed to receive a General Discharge Certificate but he received an Undesirable Discharge Certificate after being discharged (referencing SO Number 033 paragraph 3955). He received several Article 15s due to chronic alcohol abuse. Two weeks prior to his discharge he was advised that he would receive a general discharge. His record shows he enlisted at the age of 18 years old, he accepted nine NJPs, he was counseled on five occasions for his misconduct, he had 24 days lost due to being AWOL, and he was self-enrolled ADAPCP. He served 1 year, 9 months, and 3 days of his 2 years contractual obligation. 18. On 15 September 1987, the Army Discharge Review Board denied the applicant’s petition for an upgrade, determining that his discharge was proper and equitable. 19. AR 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, established policy and prescribed procedures for separating Soldiers for unfitness and unsuitability and paragraph 13-5a(1), provided an individual would be subject to separation if he or she exhibited frequent incidents of a discreditable nature with civil or military authorities. An individual separated because of unfitness will be furnished an Undesirable Discharge Certificate, except that an honorable or general discharge certificate may be issued if the individual has been awarded a personal decoration of if warranted by the particular circumstances in his case. 20. 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 considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade request. The Board considered the applicant’s statement, his record of service, his enrollment in ADAPCP, the frequency and nature of his misconduct, his summary court-martial, consideration by a Board of Officers, the reason for his separation and whether to apply clemency. The Board found no in-service mitigation for his 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 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provided for the separation of enlisted personnel from the Regular Army. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. b. A general discharge is a separation from the .Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. c. When an individual is to be discharged as unfit and is issued an undesirable discharge, the convening authority will direct his immediate reduction to the lowest enlisted grade. d. Chapter 13 established policy and prescribed procedures for separating Soldiers for unsuitability. Paragraph 13-5a(1), provided an individual would be subject to separation if he or she exhibited frequent incidents of a discreditable nature with civil or military authorities. An individual separated because of unfitness will be furnished an Undesirable Discharge Certificate, except that an honorable or general discharge certificate may be issued if the individual has been awarded a personal decoration of if warranted by the particular circumstances in his case. 3. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. a. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. b. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190009163 7 1