IN THE CASE OF: BOARD DATE: 21 April 2020 DOCKET NUMBER: AR20190014965 APPLICANT REQUESTS: an upgrade of his character of service from under honorable conditions (general) to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 5 October 2019 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), ending 25 February 1970 with General Discharge Certificate FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, section 1552(b); however, the 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 that he needs an honorable discharge in order to be eligible to obtain a Veteran's License Plate. He believes he deserves an upgrade of his characterization of service because he tried to join the service four years prior to being drafted. In those four years, his friends died. He tried to join every branch of service but failed every test. He was made fun of and called a dummy. His superior officers also made fun of him, which upset him and caused him to be depressed. 3. The applicant was inducted into the Army of the United States on 3 June 1968. He went absent without leave (AWOL) while participating in Basic Combat Training at Fort Lewis, Washington. 4. His DA Form 20 (Enlisted Qualification Record) shows the applicant: * was AWOL on at least nine occasions * was punished under the provisions of Article 15 of the Uniform Code of Military Justice on two occasion for being AWOL * was tried by Special Court-Martial (SPCM) for being AWOL on two occasions 5. His DA Form 20B (Record of Court-Martial Conviction), and court-martial orders show the he was convicted by SPCM Court-Martial: * for being AWOL from 7 August 1968 to 3 December 1968; and being AWOL from 24 December 1968 to 27 February 1968 * for being AWOL from 4 July 1969 to 25 September 1969 6. On 13 January 1970, he underwent a psychiatric evaluation. Upon examination the psychiatrist recommended the applicant be separated from military service under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) based on a diagnosis of inadequate personality, chronic, severe, manifested by borderline mental retardation. The psychiatrist noted: a. The applicant was mentally responsible, both to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings. b. He had no mental disease or physical defect sufficient to warrant disposition through medical channels. c. The applicant's pertinent history found that his low intelligence, made school difficult and he had flunked subjects consistently but was able to graduate at age 18. After completing high school, the applicant tried to enlist into the service but was rejected several times with a 1-Y classification (qualified only in time of war or national emergency). He also had several encounters with the law before being inducted into the Army at age 22. The applicant resented being inducted after having been rejected from enlisting in the past. He had difficulty comprehending instructions so he was not able to adapt to Basic Combat Training. Since his referral for discharge, the applicant had gone AWOL eleven times and received two Article 15's and he had twice been convicted by SPCM. Prior to being transferred to the U.S. Army Disciplinary Barracks, the applicant had been seen by a psychiatrist at Fort Riley, KS, who again recommended a discharge for unsuitability. The applicant was evaluated several times in the past and it was the unanimous opinion of the psychiatrists that the applicant was unsuitable for retention in the military. 7. On 2 February 1970, the applicant's unit commander notified him of pending separation action under the provisions of AR 635-212 for unsuitability. The applicant acknowledged notification of the separation action, consulted with legal counsel, waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and did not submit statements in his own behalf. He acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him. He further acknowledged that he understood that as a result of the issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life. 8. On 4 February 1970, the separation authority directed the applicant be discharged under the provisions of AR 635-212 with issuance of a General Discharge Certificate. 9. On 25 February 1970, the applicant was discharged accordingly. His DD Form 214 shows he was discharged under the provisions of AR 635-212 with a separation program number of 264 for unsuitability, character and behavioral disorders, with issuance of a General Discharge Certificate. He completed 3 months and 5 days of total active service during this period with 517 days of time lost. 10. His military record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge. 11. The Board should consider the applicant's overall record in accordance with Brotzman and Nelson Memorandums, and the current published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants 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 reason for his separation and whether to apply clemency. The Board found insufficient evidence of in- service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-212 (Personnel Separations – Discharge-Unfitness and Unsuitability), then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability. It provided for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by proper medical authority. 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. AR 635-200 (Active Duty Enlisted Administrative Separations) currently sets forth the basic authority for the separation of enlisted personnel. 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. 4. AR 635-200 was revised on 1 December 1976 following settlement of a civil suit. Thereafter, the type of discharge and the character of service were to be determined solely by the individual's military record during the current enlistment. Further, any separation for unsuitability based on a personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry. In connection with these changes, a Department of the Army memorandum, dated 14 January 1977, and better known as the Brotzman Memorandum, was promulgated. It required retroactive application of revised policies, attitudes, and changes in reviewing applications for upgrades of discharges based on personality disorders. 5. A second memorandum, dated 8 February 1978, and better known as the Nelson Memorandum, expanded the review policy and specified that the presence of a personality disorder diagnosis would justify upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given. Conviction by general court-martial or by more than one special court-martial was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge. 6. 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) AR20190014965 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1