ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 May 2021 DOCKET NUMBER: AR20210006205 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Transfer or Discharge) 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, in effect, his type of discharge is honorable. The character of service is currently incorrectly listed as “under honorable conditions (general).” He was discharged honorably. 3. On 18 May 1970, the applicant was 19 years old and enlisted in the Regular Army for a period of 3 years. He completed training requirements and was awarded his military occupational specialty. He served in the Republic of Vietnam from on or about 4 December 1970 to 17 April 1971. 4. On 29 September 1970, he received non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying general lawful regulations. He wrongfully introduced alcoholic beverages in an unauthorized area and wrongfully consumed an alcoholic beverage in an unauthorized area. The applicant did not appeal. 5. On 13 January 1971, the applicant received NJP under the provisions of Article 15 of the UCMJ for failing to be at his appointed place of duty. He did not appeal. 1 6. On 18 February 1971, he received NJP under the provisions of Article 15 of the UCMJ for failing to be at his appointed place of duty. The applicant did not appeal. 7. On 25 February 1971, the applicant received NJP under the provisions of Article 15 of the UCMJ for failing to be at his appointed place of duty. He did not appeal. 8. On 3 March 1971, the applicant was medically cleared for separation from the Army, and on 4 March 1971, he was psychiatrically cleared for separation action deemed appropriate by his chain of command. The psychiatric evaluation shows, in pertinent part: * the applicant did not appear to be “motivated to attempt to adjust to the military” * there was no evidence of an overt/thought disorder * his memory was intact, judgment was poor, and insight was minimal * the applicant’s intelligence was considered to be within normal limits * there was no evidence of drugs or alcohol present, and no evidence of psychosis or neurosis * the applicant was mentally competent to withstand board proceedings; and he knew right from wrong and could adhere to the right * he was responsible and he met medical retention standards * the applicant was psychiatrically cleared for processing for separation under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge for Unfitness and Unsuitability) 9. On 19 March 1971, a Denial of Privilege of Enlisting/Reenlisting was approved and imposed against the applicant based on him receiving NJP on multiple occasions, and his attitude, integrity, professional competence, and reliability were deemed to be below the required standards. He was considered unfit to be utilized in the Armed Forces of the United States. 10. His record contained statements from his chain of command stating, in pertinent part, the applicant felt he could never adjust to the military life and he wanted an unsuitability discharge under the provisions of AR 635-212. He could do no productive tasks for the Army. The applicant’s complete disregard for any type of authority and responsibility had affected the personnel around him to the point of refusal to work with him. His duty performance was unsatisfactory and he had been counseled on multiple occasions. 11. On 17 March 1971, the applicant was advised by his commander that proceedings to discharge him from the Army under the provisions of AR 635-212 for unsuitability with a general discharge had been initiated. The action was based on the applicant’s habits and traits of character manifested by his defiance of authority, failure to respond to rehabilitative measures, habitual shirking of duty and misconduct. The commander also informed the applicant of his rights. a. Counsel advised the applicant of the basis for his contemplated separation, its effects, and the rights available to him. b. The applicant elected to waive consideration of his case by a board of officers and to waive personal appearance before a board of officers. He elected not to submit statements in his own behalf and to waive representation by counsel. The applicant personally made the choices indicated in the statement. c. On 18 March 1971, his commander formally recommended he be eliminated from the Army for unsuitability. The commander indicated, the applicant’s behavior was characterized by gross inefficiency, laziness and incompetence, caused by his lack of appropriate interest in the mission of the organization and that of the service. His behavior contributed nothing and in fact hindered the efforts of others. The applicant had stated that he did not care whether he did a good job or not. The commander felt that further efforts to motivate the applicant would be useless. His behavior had not resulted in incidents of the type which warranted consideration of elimination for unfitness. There appeared to be no grounds for other disposition of the applicant. d. The chain of command recommended approval of the applicant’s elimination from the Army, and to waive rehabilitation requirements. On 12 April 1971, the separation authority approved the applicant’s discharge and directed he be issued a General Discharge Certificate. The rehabilitation requirements were waived. 12. On 18 April 1971, the applicant was discharged accordingly. The DD Form 214 he signed for shows he was discharged “under honorable conditions” in accordance with AR 635-212, Separation Program Number 46A (unsuitability, apathy, defective attitudes, and inability to extend effort constructively). He completed 11 months and 1 day of net service this period. 13. On or about 11 February 1975, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge. The ADRB determined he was properly discharged. 14. AR 635-212 then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed: (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts). 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. 15. In reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense 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 and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined 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. 6/22/2021 X CHAIRPERSON 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. AR 635-212 (Personnel Separations – Discharge for Unfitness or Unsuitability) then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed: (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts). 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 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. The regulation provides that: a. An honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. A general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. 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. a. 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 the discharge, which may be warranted based on equity, or relief from injustice. b. 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 based on 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, 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 upgrade service characterization. //NOTHING FOLLOWS//