ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  19 September 2019 DOCKET NUMBER:  AR20190009645 


APPLICANT REQUESTS:   The applicant requests his under honorable conditions (general) discharge be upgraded to honorable. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states he believes his record to be unjust.  While studying his bible inthe Army his conscience directed him to ask to get out of the Army.  He servedhonorably but didn’t complete his full term of three years.

3.On 21 December 1970, the applicant enlisted in the Regular Army for three years atthe age of 19.  He completed his initial training with his conduct and efficiency asexcellent; was assigned to his first duty assignment in Panama as a 72B,(Communications Center Specialist) on 28 August 1971.

4.On 28 February 1972, he received non-judicial punishment (NJP) for insubordinationby not rendering the proper hand salute to First Lieutenant (1LT) F_____ and whencorrected he stated words to the effect, “Were not going through this again” and forexhibiting further disrespect for 1LT F_____; by leaving and immediately resuming theunsoldierly attitude he had been counseled for.  He was also formerly counseled by hiscommander; he explained to the applicant his extremely negative attitude could result infurther disciplinary action and eventually could result in his elimination.

5.On 24 March 1972, he used the open door policy to speak with his BattalionCommander (BC).  The applicant in part shared he had been recommended forpromotion to Specialist by his supervisor however, his Officer In Charge (OIC)
disapproved it and did not forward the recommendation.  The applicant felt because in the past few weeks his work performance was sufficient for favorable consideration.  The BC explained, in the past the applicant’s attitude and deportment had not been of a caliber that would warrant promotion.  The applicant responded with his intelligence was superior to other Soldiers and that alone is why he believed he should be promoted.  He was told by the BC the application of his intelligence within the framework of the Army structure were also of importance and consideration in selecting individuals for promotion and that the applicant was less than qualified in those areas and if he didn’t change his attitude and channel his abilities in a constructive manner he would become a candidate for elimination under the provisions of AR 635-212.  The applicant stated “he didn’t want a 212,” and he did not want to be categorized with the other individuals who were in the processing of being separated.  

6.On 14 April 1971, the applicant received NJP for failing to go to his appointed placeof duty, security guard on 28 March 1972 and 3 April 1972.  He was also formerlycounseled by his commander; he explained to the applicant his disobedience anddisruptive actions could not and would not be tolerated because of the effects on theunit’s morale, efficiency, and discipline.  He was also advised of the provisions of AR635-212 for elimination.

7.On 23 August 1972, he was formerly counseled by his commander.  He wasinformed the commander was considering initiating action to eliminate him from theArmy under AR 635-212.  In preparation, he made appointments with the Chaplain, acomplete physical examination to include psychiatric evaluation.  The commanderinformed the applicant future misconduct could have a negative impact on the type ofdischarge recommended.

8.On 11 September 1972, the applicant received three separate formal counseling’s byhis OIC for:

.On 11 July 1972, questioning the authority of the OIC, ineffectiveness toaccomplish a task, and continuous display of lack of initiative and enthusiasm forboth learning and getting the job done.

.On 25 August 1972, inability to adequately perform with fellow Soldiers, militarybearing, excessive movement from job to job, and acts of misconduct

.On 18 October 1971, inadequate behavior and unsoldierly attitude resulting in histransfer to another unit



9.On 13 September 1972, he underwent a medical examination, a mental statusevaluation, and a Chaplain’s interview.  The examinations showed he was qualified forseparation under AR 635-212.  The Chaplain stated it would be in the best interest ofthe Army the applicant be separated under AR 635-212.

10.On 25 September 1972, the applicant was formerly counseled by his commander togive him another chance in a different assignment.

11.On 16 October 1972, the applicant’s commander notified him that he was initiatingseparation actions against him under the provisions of Army Regulation (AR) 635-212(Personnel Separations – Discharge Unfitness and Unsuitability), under the provisionsof paragraph 6b for unsuitability.

a.The applicant acknowledged he had been notified of the pending separationaction against him and he had been advised by his consulting counsel of the basis for the contemplated action, understood his rights, waived consideration of his case before a board of officers, and he elected not to submit statements in his own behalf.   

b.On 30 October 1972, the appropriate authority approved the recommendation forseparation and directed that the applicant be separated under the provisions of AR 635-212, paragraph 6b. 

12.On 3 November 1972, the applicant was discharged accordingly.  His DD Form 214shows he completed 1 year, 10 months, and 13 days.

13.The applicant contends his conscience directed him to ask to get out of the Army.His records show he graduated high school; he completed initial training with conductand efficiency as excellent; he received the National Defense Service Medal.

14.AR 635-212, paragraph 6b, provided that Soldiers would be discharged by reasonof unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2)character and behavior disorders; (3) apathy (lack of appropriate interest, defectiveattitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and(6)homosexuality.  An honorable or general discharge was issued as determined by theseparation authority based upon the individual's entire record.

15.AR 635-5 (Personnel Separation – Separation Documents) provides that SPN 46Ais designated under the authority of AR 635-212 and the reason of unsuitability – apathy

16.In reaching its determination, the Board can consider the applicant's petition and hisservice record in light of the published DOD guidance on equity, injustice, or clemency.

BOARD DISCUSSION: 

1.The Board carefully considered the applicant’s request, supporting documents,evidence in the records and published DoD guidance for consideration of dischargeupgrade requests.  The Board considered the applicant’s statement, his record andlength of service, the frequency and nature of his misconduct, the record of counselling,


the interview with a Chaplain and the reason for his separation.  The Board found insufficient evidence of in-service mitigation for his misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support ofa 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 Baord determinedthat relief was not warranted.



BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XXX :XXX :XXX 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. 



X 


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 militaryrecords 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 oflimitations if the ABCMR determines it would be in the interest of justice to do so.

2.Army Regulation (AR) 635-212 (Personnel Separations – Discharge Unfitness andUnsuitability), in effect at the time, set forth the policy and procedures for administrativeseparation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b stated anindividual was subject to separation for unsuitability when one or more of the followingconditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lackof appropriate interest, defective attitudes, and inability to expend effort constructively);(4)alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexualtendencies, desires, or interest, but was without overt homosexual acts).  Whenseparation for unsuitability was warranted, an honorable or general discharge wasissued as determined by the separation authority based upon the individual's entirerecord.

3.AR 635-5 (Personnel Separation – Separation Documents), in effect at the time,prescribed the separation documents that will be furnished each individual who isseparated from the Army, including active duty for training personnel, and establishedstandardized procedures for the preparation and distribution of these documents.  Itprovides that SPN 46A was designated for the authority of AR 635-212 and the reasonof unsuitability – apathy, defective attitudes & inability to extend effort constructively.

4.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records (BCM/NRs) regarding equity, injustice, or clemencydeterminations.  Clemency generally refers to relief specifically granted from a criminalsentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in acourt-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 andprinciples 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.