ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:  BOARD DATE:  16 November 2020 DOCKET NUMBER:  AR20200009246 


APPLICANT REQUESTS:  upgrade of his under other than honorable conditions discharge to a general, under honorable conditions discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record) 

FACTS: 

1.The applicant did not file within the three-year time frame provided in Title 10, UnitedStates Code, section 1552(b); however, the Army Board for Correction of MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states he begged for leave to take care of his problem back home withhis wife.  She started going out with his best friend.  He was the best man in hiswedding.  He showed them the letter his sister in law wrote him telling him his wife wasseeing and sleeping with his so-called best friend.  He volunteered for service.  He loveshis country.  He was just a kid in love with his wife.  She had just had his baby.

3.Review of the applicant’s service records:

a.He enlisted in the Regular Army on 5 October 1973.  His military occupationalspecialty was 12B (Pioneer). 

b.He received non-judicial punishment under Article 15, Uniform Code of MilitaryJustice (UCMJ), on/for: 





•13 March 1974, without authority, on 4 March 1974, absent himself from his unit, and remained so absent until 12 March 1974•5 June 1974, assaulted specialist four (SP4) W__, by striking him across the shoulders on his back with a pipe and wrongfully communicated to SP4 W__ a threat to injure him, his punishment was reduction to private/E-1•17 October 1974, wrongfully possessing marijuana on 16 October 1974

•29 October 1974, resisted being lawfully apprehended, was drunk anddisorderly, and indecent exposure on 27 October 1974



c.Unit Orders Number 35 (and amendment Orders 36), issued by, 518th EngineerCompany, Fort Kobbe, Panama, on 5 August 1974, reduced him to private/E-1. 

d.On 6 September 1974, he was convicted by a special court-martial of onespecification of being absent without authority from 9 July 1974 to 25 July 1974, two specifications of willfully disobeying lawful orders from two superior noncommissioned officers, and two specifications of breaking restriction.  The court sentenced him to confinement at hard labor for four months. 

e.On 10 September 1974, the convening authority approved only so much of thesentence as provided for confinement for 45 days. 

f.The applicant was reassigned to the Retraining Brigade at Fort Riley, KS; in aprogram designed to prepare former enlisted prisoners for improved military performance and personal conduct at their next duty station.  While there, he was frequently counseled for a variety of infractions, including:  

•Assault and communicating a threat

•AWOL (absent without leave)

•Disobeying orders

•Breaking restriction

•Failing commander's inspection

•Uniform violation

•Dereliction of duty

•Possession of marijuana

•Resisting apprehension

•Indecent exposure

•Drunk and disorderly



g.On 18 November 1974, the applicant's immediate commander recommended theapplicant be discharged from the service, under the provisions of chapter 13 (unfitness), Army Regulation 635-200 (Personnel Separations-Enlisted Personnel) for frequent acts of a discreditable nature.  The applicant had received 4 Article 15’s, and one Special Court Martial.  He attached the applicant’s resume (infractions included above) regarding his attitude, conduct, performance and discreditable acts. 

h.The applicant consulted with legal counsel on 22 November 1974.  He wasadvised of the basis for the contemplated separation under the provisions of chapter 13 of AR 635-200, its effects, and of the rights available to him.  He elected not to submit a statement on his own behalf.  He acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. 

i.On 22 November 1974, the applicant’s immediate commander initiated separationaction against him in accordance with chapter 13-5, of AR 635-200 because of frequent incidents of a discreditable nature (Article 15s for assault and communicating a threat, possession of marijuana, resisting apprehension, drunk and disorderly and indecent exposure and court-martial conviction).  His intermediate commander recommended approval of the discharge action.  The commander stated:  

•the applicant was sent to the Brigade for the purpose of receiving correctionaltraining and treatment necessary to return him to duty as a well-trainedSoldier with improved attitude and motivation; however, his actions precludedaccomplishment of the objective; unsatisfactory performance

•the applicant had demonstrated little desire to return to duty; he possessedthe mental and physical ability necessary to be an effective Soldier, but hisrecord and his failure to react constructively to the rehabilitation program wereindicative that he should not be retained in the service

•he recommended the requirements for further counseling and rehabilitationbe waived



j.The separation authority’s approval memorandum was not available for review.However, on 27 November 1974, Headquarters, U.S. Army Retraining Brigade, Fort Riley published Special Orders Number 232, ordering his discharge effective 29 November 1974, and directed that he be issued an Undesirable Discharge Certificate. 

k.The applicant was discharged on 29 November 1974.  His DD Form 214 (Reportof Separation from Active Duty) shows he was discharged under the provisions of chapter 13-5a (1) of AR 635-200 with an under other than honorable conditions characterization of service.  He was assigned Separation Program Designator JLB (unfitness-frequent involvement of a discreditable nature with authorities).  He completed 11 months, and 9 days of active service, and he had 76 days of lost time from 4 to 11 March 1974, 9 to 24 July 1974, and 19 August to 10 October 1974. 

l.On 15 November 1976, the Army Discharge Review Board (ADRB) reviewed hisdischarge and found it proper.  The ADRB denied his request for upgrade. 

5.By regulation, (AR 635-200), chapter 13-5a, in effect at the time, contains the policyand outlines the procedures for separating individuals for unfitness.  Action was to betaken to discharge an individual for unfitness when, in the commander's opinion, it wasclearly established that:  the individual was unlikely to develop sufficiently to participatein further military training and/or become a satisfactory Soldier.
6.In reaching its determination, the Board should consider the applicant’s petition, hisservice record, and his statement in accordance with the published Department ofDefense guidance on equity, injustice, or clemency.

BOARD DISCUSSION: 

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. 

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 

:XX :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. 


Microsoft Office Signature Line...

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 forcorrection of military records must be filed within 3 years after discovery of the allegederror or injustice.  This provision of law also allows the ABCMR to excuse an applicant'sfailure to timely file within the 3-year statute of limitations if the Army Board forCorrection of Military Records (ABCMR) determines it would be in the interest of justiceto do so.

2.Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), ineffect at the time, set forth the requirements and procedures for administrativedischarge of enlisted personnel.

a.Paragraph 3-7a stated an honorable discharge is a separation with honor.  Thehonorable 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.  When a member is discharge before expiration of term of service for a reason which an honorable discharge is discretionary, the following considerations apply.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).   

b.Paragraph 3-7b stated a discharge under other than honorable conditions is anadministrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of service in the following circumstances, when the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of Soldiers of the Army.    
 
     c.  Chapter 13 of the regulation in effect at the time provided for separation for unsatisfactory performance.  The regulation states, that separation action would be taken to separate an individual for unfitness or unsuitable, when, in the commander’s judgement, the individual would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.    
 
3.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code of "JLB" is the correct code to be assigned to Soldiers separating under chapter 13-5a of AR 635-200 by reason of unfitness-frequent involvement of a discreditable nature with authorities. 
 
4.  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.  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.  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//