ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 September 2019 DOCKET NUMBER: AR20190011105 APPLICANT REQUESTS: Her 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 1 August 2019 * DD Form 214 (Report of Separation from Active Duty), for the period ending 2 December 1975 * Employment Resume 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: a. She was led to believe he discharge would be under Chapter 5 and her service would be characterized as honorable. She was an outstanding Soldier when in the Army, completing training in two military occupational specialties and graduating with honors. She asked for a discharge to be with her husband, who was also on active duty. b. After being discharged, she served the Army as a civilian employee for almost 20 years, fighting for the equal rights of Soldiers and civilian employees. Her service to the federal government culminated in her retirement as a GS-15 and Director of Equal Employment Opportunity for a federal agency. What happened when she was 19 years old was unjust. 3. The applicant enlisted in the Regular Army on 17 September 1974. 4. A DA Form 3822-R (Report of Mental Status Evaluation), dated 12 September 1975, shows the applicant was referred for a mental status evaluation. The examining officer determined she had no obvious impairments and was cooperative and normal in thinking. The examiner further determined her activities to date had been characterized by immaturity, frequent impulsivity, and a highly variable interest level in duty assignments (from bursts of activity to near total apathy). Her duty performance was described as marginal at best. Her difficulties were not connected to either neurosis, psychosis, or a character behavior disorder, yet were of sufficient magnitude to preclude a successful adjustment to the military, and fell within the confines of the "inability to adapt socially or emotionally" noted in the criteria of eligibility for the Expeditious Discharge Program [Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 5]. 5. The applicant's commander notified the applicant on 29 September 1975 that actions had been initiated to separate her under the provisions of Army Regulation 635-200, paragraph 13-5b, for unsuitability. 6. In a personal statement, dated 29 September 1975, the applicant stated she did not like military service and rehabilitation would not be possible because she did not want rehabilitation or adjustment to the military. She further stated she would be happy with any discharge from the service. 7. The applicant's commander formally recommended her separation from service on 29 September 1975, under the provisions of Army Regulation 635-200, paragraph 13-5, for unsuitability. The applicant’s chain of command concurred with the discharge recommendation based on her inability to adjust to military life. 8. The applicant acknowledged receipt of the proposed separation memorandum on 1 October 1975. She consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to her, and the effects of a waiver of her rights. She elected not to make a statement in her own behalf. 9. The separation authority approved the applicant's discharge on 20 November 1975, under the provisions of Army Regulation 635-200, Chapter 13, for unsuitability due to apathy and directed the issuance of a DD Form 257A (General Discharge Certificate). 10. The applicant was discharged on 2 December 1975. Her DD Form 214 confirms her service was characterized as under honorable conditions. The authority and reason are not listed. 11. Army Regulation 635-200 provided the authority for the separation of enlisted personnel upon expiration of term of service; the authority and general provisions governing the separation of enlisted personnel prior to expiration of term of service; and the criteria governing the issuance of Honorable and General Discharge Certificates. a. Chapter 13 of the version in effect at the time provided for the separation of Soldiers for unsatisfactory performance. b. Paragraph 13-5a of the version in effect at the time provided for the separation of Soldiers for unfitness (misconduct). c. Paragraph 13-5b provided for the separation of Soldiers for unsuitability. (1) Sub-paragraph (1) applied to those Soldiers being separated for inaptitude. (2) Sub-paragraph (2) applied to those Soldiers being separated for character and behavior disorders [later deemed personality disorders]. (3) Sub-paragraph (3) applied to those Soldiers being separated for apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively. 12. The Board should consider the applicant's overall 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 requests. The Board considered the applicant’s statement, her record and length of service, the DA Form 3822-R (Report of Mental Status Evaluation) and her statement at the time and the reason for her separation. The Board considered the applicant’s statement regarding post-service conduct, but found insufficient associated documentation 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 :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. 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 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Chapter 13 in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. It provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record. 3. 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. ABCMR Record of Proceedings (cont) AR20190011105 5 1