IN THE CASE OF: BOARD DATE: 6 December 2019 DOCKET NUMBER: AR20190011101 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20140001930 on 18 September 2014. Specifically, he requests his under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 8 July 2019 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20140001930 on 18 September 2014. 2. As a new argument, the applicant states, in effect, the Red Cross from Wichita Falls, TX came and notified his drill sergeant that he was required to be in paternity court for a claim made against him by a girl he was dating. The claim turned out to be a false statement. Additionally, he was arrested for sitting on the side of a highway in a broken down car, before he was able to contact his command to get back to base. 3. The applicant enlisted in the Regular Army on 28 May 1976. 4. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: * on 5 December 1976, for failing to go at the time prescribed to his appointed place of duty, on or about 17 November 1976 * on 31 January 1977, for wearing his Army uniform to a prohibited area, on or about 3 December 1976 5. The applicant's record contains the following DA Forms 4187 (Personnel Action) that shows his duty status was changed as follows: * from ordinary leave to absent without leave (AWOL), on or about 7 March 1977 * from AWOL to present for duty (PFD), on or about 9 March 1977 * from PFD to AWOL, on or about 13 March 1977 * from AWOL to PFD, on or about 15 March 1977 * from PFD to confined by civil authorities (CCA), on or about 24 March 1977, after he was apprehended for failing to appear in court for driving without a license and speeding, pending trial * from CCA to PFD, on or about 25 March 1977 6. The applicant’s record contains a DA Form 2496 (Disposition Form – Record of Informal Counseling) that shows he was counseled by his first sergeant (1SG) on 5 July 1977, because: a. His attitude towards work and appearance was still declining since his counselling session on 16 June 1977. b. His appearance and reaction to orders had not improved. The 1SG felt that he was a substandard Soldier and would continue to be substandard. The 1SG cited the following as examples of his attitude: * shirking his duties and responsibilities * appearance (haircut, sideburns, & not shaving) * dirty and unserviceable clothing * frequent involvement with law enforcement agencies, both military and civilian c. All of the above were detrimental to the military service and to his career. He was informed that immediate action needed to be taken to improve these performance deficiencies, or the 1SG would recommend disciplinary actions be taken against him. 7. The applicant's service record contains the following DA Forms 4187, showing his duty status was changed as follows: * from PFD to CCA, on or about 29 August 1977, when he was apprehended for a failure to pay traffic fines, he was being held pending bond * from CCA to PFD, on or about 31 August 1977 8. The applicant underwent a mental status evaluation on or about 13 September 1977. The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows he had no significant mental illness; was mentally responsible and able to distinguish right from wrong; had the mental capacity to understand and participate in board proceedings; and met retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness). 9. The applicant accepted NJP on 13 October 1977, under the provisions of Article 15 of the UCMJ, for being AWOL, from on or about 4 October 1977 through on or about 6 October 1977. 10. The applicant's immediate commander notified the applicant in October 1979 that he was initiating actions to separate him from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, due to misconduct – frequent incidents of a discreditable nature with civil and military authorities. The applicant's commander advised him of the rights available to him and the effect of any actions taken by him in waiving his rights. 11. The applicant subsequently consulted with counsel and acknowledged receipt of the contemplated action to separate him under the provisions of Army Regulation 635-200, Chapter 13, for misconduct, – frequent incidents of a discreditable nature with civil and military authorities. He was advised that he could expect to encounter substantial prejudice if a general discharge under honorable conditions was issued, and further advised that, as the result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. He made the following elections of his rights: * he requested to have his case considered by a board of officers * he requested to make a personal appearance before a board of officers * he requested to be represented by counsel * he declined to submit statements in his own behalf * he elected to obtain documents to be presented to the separation authority * he acknowledged his right to withdraw any waiver of rights at any time prior to the date of separation 12. The applicant's commander formally recommended the applicant's separation from service on 27 October 1977, prior to the expiration of his term of service, under the provisions of Army Regulation 635-200, Chapter 13, for his misconduct – frequent incidents of a discreditable nature with civil and military authorities. He noted that since being assigned to the unit, [the applicant] has been counseled, punished under Article 15, UCMJ, and had been reprimanded for his conduct on and off duty. He repeatedly resisted attempts by his chain of command to help him toward rehabilitation; 11 attempts had proved futile and further attempts seem unwarranted. The applicant’s intermediate commanders subsequently recommended approval of his separation. 13. The applicant's duty status was changed from PFD to CCA, on or about 29 November 1977, when he was apprehended for failing to pay traffic fines and was held until the fines were paid. 14. The separation authority reviewed the request for separation on 7 December 1977, and disapproved the chain of command’s waiver of further rehabilitation efforts. He directed the applicant be reassigned to another unit. 15. The applicant’s service records show that after his rehabilitative reassignment, he was counseled on the following occasions: * on 9 January 1978, for being late every morning; not working with his section on latrine detail; leaving work area; wearing unserviceable uniform; and sleeping in room when he was supposed to be on sick call * on 21 January 1978, by his section chief and 1SG, for failing to wake up on time and missing inspection; refused to obey a lawful order to attend formation; failing to attend formation on 22 January 1978; and potential separation for rehabilitation failure * on 25 January 1978, by his 1SG, for being recommended for separation, and disobeying an order to wear the correct uniform from the battalion commander and continually disobeying orders from chain of command 16. The applicant accepted NJP on 30 January 1978, under the provisions of Article 15 of the UCMJ, for assaulting another Soldier, on or about 17 January 1978. 17. The applicant's commander notified the applicant that he was recommending separation from service on 28 February 1978, under the provisions of Army Regulation 635-200, paragraph 5-37 (Expeditious Discharge Program (EDP)), due to his lack of self-discipline and based on his record of having received four disciplinary actions. The applicant's commander advised him of the rights available to him and the effect of any actions taken by him in waiving his rights. He further advised him that he would recommend he receive a general discharge. 18. The applicant acknowledged receipt of the proposed separation memorandum on 28 February 1978. He voluntarily consented to the discharge and waived his right to submit a statement in his own behalf. He acknowledged that he may encounter substantial prejudice in civilian life if he received a general discharge, under honorable conditions. 19. The applicant's commander formerly recommended his separation from service on 28 February 1978, under the provisions of Army Regulation 635-200, paragraph 5-37, due to his lack of self-discipline and based on his record of having received four disciplinary actions. 20. Consistent with the commander’s recommendations, the separation authority approved the applicant's discharge on 1 March 1978 and directed that his service be characterized as under honorable conditions. 21. The applicant was discharged on 7 March 1978, under the provisions of Army Regulation 635-200, paragraph 5-31. His DD Form 214 confirms his service was characterized as under honorable conditions (general). Item 9c (Authority and Reason), contains the entry "PARA 5-31, AR 635-200 SPD JGH." 22. The applicant applied to the ABCMR for an upgrade of his general discharge; however, the Board denied his request on 18 September 2014. 23. The Board should consider the applicant's request 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 statement, his 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 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 :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. 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 5 provided for the EDP. The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential could be discharged under the EDP. It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary. Soldiers had to consent to separation under this program in order for commanders to separate them under the provisions of the EDP. Otherwise, a commander was required to separate Soldiers under other provisions of the regulation, which in most cases resulted in an under other than honorable conditions discharge. Individuals discharged under this provision of the regulation were issued either a general or honorable discharge. 2. 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) AR20190011101 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190011101 7 ABCMR Record of Proceedings (cont) AR20190011101 6