BOARD DATE: 28 February 2020 DOCKET NUMBER: AR20190014401 APPLICANT REQUESTS: The applicant requests an upgrade of his under conditions other than honorable discharge and a personal board appearance. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Character reference letter 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 requests an upgrade of his discharge to at least reflect the willingness to serve and for the time served. The character reference letter shows a man of integrity and one that has lived a life of honor. 3. On 11 February 1969, the applicant enlisted in the Regular Army for a period of 3 years. 4. A review of the applicant’s military record shows he was arraigned, tried, and convicted on 3 separate occasions by Special Courts-Martial. He was found guilty on: * 14 July 1969, for being absent without leave (AWOL) from on or about 28 May to 25 June 1969 * 26 March 1970, for being AWOL from on or about 4 January to 26 February 1970 * 27 October 1970, for being AWOL from on or about 1 April to 10 October 1970 5. On 21 October 1970, a medical examination cleared the applicant for administrative discharge. 6. On 2 November 1970, he was psychiatrically cleared for any administrative or disciplinary action deemed necessary by his chain of command. 7. On 4 November 1970, the applicant’s commander notified him of his proposed action to separate him for reasons of unfitness under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). The commander cited the applicant’s 3 court-martial convictions, “333” days of bad time due to AWOL, his dislike for the military service, lack of self-motivation and negative attitude toward the military. The commander also informed the applicant of his rights. a. The applicant was advised by counsel of the basis for his contemplated separation action, its effects, and the rights available to him. He elected not to submit statements in his own behalf. b. After being advised by counsel of the basis for the contemplated separation action under the provisions of AR 635-212 for unfitness, and the rights available to him, the applicant waived: * consideration of his case before a board of officers * a personal appearance before a board of officers * representation by military or civilian counsel c. His chain of command recommended approval of his discharge from the Army with an Undesirable Discharge Certificate. d. The separation authority approved the recommendation and directed the applicant be furnished an Undesirable Discharge Certificate. The separation authority also approved the waiver of rehabilitation. 8. On 19 November 1970, the applicant was discharged under the provisions of AR 635-212 with an undesirable discharge certificate. He completed 9 months and 27 days of net active service. He had “347” days of lost time. His DD Form 214 also shows an “under conditions other than honorable” character of service and separation program number (SPN) 386 (unfitness – frequent incidents of a discreditable nature with civil or military authorities). He was not awarded a personal decoration. 9. In support of his case, the applicant provided a character reference that states, in pertinent part: a. The applicant has great character and loyalty. He worked hard to provide for his family as a pipefitter for over 30 years. He raised three sons and taught them how to work hard for the things in life that matter, God, family, home and others. b. The applicant’s only heartache of shame has been that he was ignorant in his youth and made mistakes during his time in the military that caused his discharge to be less than honorable. When the applicant speaks of this time in his life, he sheds tears of shame, because he let the emotions of a young man over rule his commitment to the Army, leading him to make unwise decisions that had a lifetime effect on his record. c. The applicant relates that his emotions were that of a young husband being tried by a wife that was not honorable to the marriage or to the welfare of his two young sons at the time. Reports of neglect in caring for the children and their welfare led him to make judgement calls that were not in his best interest or that of his military obligations at the time. He whole heartedly sees the error in his judgement as a young man, newly married, the responsibility of two sons and how to maintain a commitment to family and the military. 10. Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states that, an applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. 11. Army Regulation 635-212 set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability. This regulation provided that members would be discharged by reason of unfitness when their records were characterized by one or more reasons to include frequent incidents of a discreditable nature with civil or military authorities. An undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge. 12. Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed the separation documents that would be furnished to each individual who was separated from the Army. The SPN is used in statistical accounting to represent the specific authority and reason for separation. At the time the SPN 386 was authorized for separations under the provisions of Army Regulation 635-212 with the following associated narrative reason: "Unfitness – frequent incidents of a discreditable nature with civil or military authorities.” 13. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), states that: a. An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 14. 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 requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the separation packet and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct; the Board considered the applicant provided character reference, but found no additional evidence of post-service achievements 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 and that the evidence was insufficient to support a clemency determination. 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. 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 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability. This regulation provided that members would be discharged by reason of unfitness when their records were characterized by one or more of reasons to include frequent incidents of a discreditable nature with civil or military authorities. An undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge. 3. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, provided the criteria governing the issuance of honorable, general, and undesirable discharge certificates. This regulation provided that: a. An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge 4. Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed the separation documents that would be furnished to each individual who was separated from the Army. The SPN is used in statistical accounting to represent the specific authority and reason for separation. At the time the SPN 386 was authorized for separations under the provisions of Army Regulation 635-212 with the following associated narrative reason: "Unfitness – frequent incidents of a discreditable nature with civil or military authorities.” 5. 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 (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- 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 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, 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. 6. Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states that, an applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190014401 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190014401 6 ABCMR Record of Proceedings (cont) AR20190014401 5