IN THE CASE OF: BOARD DATE: 27 January 2020 DOCKET NUMBER: AR20190010628 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), dated 13 July 2019 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 25 January 1973 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 makes no additional statement in support of his request. 3. The applicant enlisted in the Regular Army on 3 February 1972. 4. The applicant accepted non-judicial punishment (NJP) on 18 August 1972, under the provisions of Article 15 of the Uniformed Code of Military Justice (UCMJ), for being absent without authority (AWOL), on or about 17 August 1972, and for remaining absent the entire duty day. 5. Before a summary court-martial on or about 10 October 1972, at Fort Hood, TX, the applicant was found guilty of being AWOL from on or about 1 September 1972 until on or about 12 September 1972. The court sentenced him to reduction to the rank/grade of private/E-1, restriction to the company area for 30 days, and forfeiture of $192.00 pay per month for one month. The sentence was approved and ordered duly executed. 6. The applicant's commander notified the applicant on 17 November 1972 that he was being recommended for separation under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), by reason of unsuitability. The commander cited the applicant's failure to adjust to military service, his disregard for authority, his violation of Article 86, UCMJ, and prolonged periods of AWOL as grounds for separation. 7. The applicant's commander formally recommended the applicant's separation on 21 November 1972, under the provisions of Army Regulation 635-212, by reason of unsuitability. 8. The applicant accepted NJP on or about 22 November 1972, under the provisions of Article 15 of the UCMJ, for being AWOL from his unit from on or about 18 October 1972 until on or about 15 November 1972. 9. The applicant acknowledged receipt of the proposed separation notification on 6 December 1972 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. Consistent with the chain of command's recommendation, the separation authority approved the recommendation for discharge on 20 December 1972 and directed the issuance of a DD Form 257A (General Discharge Certificate). A request to waive the rehabilitative transfer requirement was submitted and approved on 3 January 1973. 11. The applicant was discharged on 25 January 1973, under the provisions of Army Regulation 635-212, by reason of unsuitability. His DD Form 214 confirms his service was characterized as under honorable conditions (general). 12. The applicant petitioned the Army Discharge Review Board (ADRB) for a review of discharge, on or around 22 March 1974. The ADRB determined the applicant was properly discharged and the appeal was denied. 13. The Board should consider the applicant's overall service record and provided statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors 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. 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. 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 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. This regulation provides that: a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for discharging enlisted personnel for unsuitability. Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that: the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability. Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality. Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available. A general or honorable discharge was considered appropriate. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190010628 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190010628 5 ABCMR Record of Proceedings (cont) AR20190010628 4