IN THE CASE OF: BOARD DATE: 2 April 2020 DOCKET NUMBER: AR20190014852 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 19 September 2019, with self- authored statement * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 25 June 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 states, in effect: a. He was a successful track and cross country runner in high school and wanted to continue on to college. He had several colleges interested him. The Army had always appealed to him so he met with his recruiter during his senior year. They talked many times about him possibly running for the U.S. Army. He told the recruiter he wanted to join the 101st Airborne Division. The recruiter told him, "after basic training and advanced training he would be able to run track for the Army in Special Services" and that "Fort Campbell was tickled pink about his times," which were lies. b. Once he arrived at Fort Campbell, KY, he was given an Army Special Services Regulation, which stated to run competitive track in Special Services for the Army he needed to run a 4:04 mile, which was way short of his best high school time. He got this form after he was stationed at Fort Campbell, so he doesn't believe his recruiter talked to Fort Campbell about him running track for the Army. c. He was originally going to enlist as an infantryman with the 101st Airborne and receive the $1500 bonus. He was later told by his recruiter he could not be an infantryman because he wore glasses but if he choose to be a company clerk, he would have more time to run. He believed him but this was not true. He did not like being a company clerk or the work that went with it. d. While in the Army, he became very depressed. He was such a fool to be so naive. He went to counseling at a mental health clinic at Fort Campbell. He went absent without (AWOL) for 14 days, came back, and took his punishment. Later on, he asked for an administrative discharge and was granted a general discharge. He feels things could have been different had he gone to college first and enlisted later. e. No regulations were broken during his enlistment but he feels his recruiter's moral code was not up to standard with Army Recruitment Codes. He is presently the Adjutant for The American Legion Post 220, he has been the Commander of AMVETS Post 710 for 3 years, and he has been the Tupper Lake Veterans Honor Guard Vice Commander for 21 years. 3. The applicant enlisted in the Regular Army on 3 August 1972. During his enlistment processing, he signed a DA Form 3286-47-R (Statement of Enlistment) that shows he requested assignment in career management field (CMF) 71 (Administration), with assignment to the 101st Airborne Division the same day he signed his enlistment contract. 4. The applicant accepted non-judicial punishment on 14 February 1973, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for absenting himself from his unit at Fort Campbell, KY from on or about 29 January 1973 through on or about 12 February 1973. His sentence included his reduction to the rank/grade of private/E-1. 5. The applicant’s service record shows he signed a Statement – Amendment of Enlistment Commitment on 9 March 1993, waiving the airborne training options of his enlistment. 6. The applicant’s service record contains a Consultation Form completed by the Fort Campbell Mental Hygiene Consultation Service on 14 May 1973. The examining provider stated: a. [The applicant] can distinguish right from wrong and can adhere to the right. He possesses the mental capacity to understand and participate in board proceedings. Certain elements of [the applicant’s] personality have hindered his satisfactory adjustment to the military: * he possesses underlying feelings of inadequacy and rejection * he demonstrates a deficient development in his ability to establish productive interpersonal relationships * he derives gratification from persecution and actively seeks it * his reactions to an environment which he perceives as thwarting and restrictive are covert defiance and emotional withdrawal b. In order to compensate for his low level of self-esteem, [the applicant] identifies himself with causes and activities which justify his feelings of rejection and enable him to deny-feelings-of inadequacy. For example, his identification with Fascism justifies his personal feelings of rejection, as most people do reject those associated with this philosophy. This identification also deals with his feelings of inadequacy in that he is able to perceive himself as a significant individual in a cause which seeks ti eliminate the inferior. c. [The applicant] has performed marginally, with great resentment and has become a socially disruptive element within his unit. His defenses have been mobilized especially by the thwarting of his athletic career. d. RECOMMENDATION: [The applicant] is cleared for administrative action. Separation through administrative channels is considered the most expedient disposition in this case as alteration of this individuals personality is felt to be unlikely at this time. 7. The applicant's commander notified the applicant on 23 May 1973 that actions had been initiated to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, for unsuitability. The commander’s request included the following statement: It has been determined by medical authorities that you are suffering from character disorders. Your displayed interests in the Nazi Party is in contravention of United States Military Standards. Your job performance is unsatisfactory and requires constant supervision and correction. Your attention is directed toward personal interests only. You have displayed no interest in the military service. I feel that your performance as a Soldier does not meet the standards required of enlisted men in the United States Army and continued service will not overcome these problem areas. 8. The applicant acknowledged receipt of the proposed separation memorandum on 5 June 1973. He consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effects of a waiver of his rights. He elected not to make a statement in his own behalf. 9. The applicant's commander formally recommended, on 6 June 1973, the applicant's separation from service under the provisions of Army Regulation 635-200, paragraph 13-5, by reason of unsuitability. The commander cited the specific reasons listed above. He also noted the following record of rehabilitative attempts: a rehabilitative transfer on 9 April 1973; he was given additional opportunities to practice his running and sporting events; and training from the First Sergeant on his job skills and soldering; all of which he rejected. His ability to do his job is very limited because of a lack of interest. 10. The separation authority approved the applicant's discharge on 13 June 1973, under the provisions of Army Regulation 635-200, Chapter 13-5b (3), and directed the issuance of a DD Form 257A (General Discharge Certificate). 11. The applicant was discharged on 25 June 1973. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5b (3) [apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively], and his service was characterized as under honorable conditions. 12. 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 General and Honorable 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. d. The applicant was discharged under the provisions of Army Regulation 635-200, paragraph 13-5b (3). 13. 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, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, and the character and reason for his separation. The Board noted the facts presented above. The Board found insufficient evidence of in- service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XX 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 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. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190014852 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190014852 7 ABCMR Record of Proceedings (cont) AR20190014852 6