ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 May 2021 DOCKET NUMBER: AR20210007349 APPLICANT REQUESTS: * an upgrade of his general under honorable conditions discharge to an honorable discharge * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) for period ending 26 February 1974 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 was 17 years old and a high school dropout when he decided to pursue a better life by joining the Army and serving his country during a time of war. But coming from the intercity of New York, his immaturity and lack of education was met with disdain and impatience. Any and all misconduct on his behalf was minor while his intentions from the outset were faithful and honorable. It has been over 46 years since his discharge. He had overcome his share of obstacles and has lived an honorable life worthy to be proud of at the age of 64 years old. It is time for his DD Form 214 to reflect his honorable life. 3. On 14 December 1972, the applicant enlisted in the Regular Army for a term of 4 years, at the age of 17 years old. He enlisted in the rank/grade of Private (PVT)/E-1 (the highest rank/grade held by him during his enlistment). 4. After completing his initial entry training, on 8 March 1973, he was assigned to Fort Hood, TX, in the military occupational specialty 11B (Light Weapons Infantryman). 1 5. A statement from First Lieutenant (1LT) J_ C_, dated 11 May 1973, revealed on: a. 19 April 1973, the applicant along with another Soldier left the base camp and refused to return to base camp to travel to main post until they were brought back to the base camp. b. 20 April 1973, the applicant pulled his bayonet out on a student platoon sergeant when the student platoon was instructed by the Lieutenant to search his rucksack for other Soldiers' missing canteens; 1LT J_ C_ found a canteen without a cover in the pocket of the applicant's rucksack. c. 23 April 1973, the applicant told the 1LT J_ C_ he was leaving the base camp, but after the LT informed him that he would be absent without leave (AWOL), he became disrespectful. The applicant was removed from training and returned to the rear. 6. 1LT J_C_ provided an additional statement, further detailing his encounter with the applicant during training. Captain D_ C_ also provided a statement, dated 16 May 1973, detailing the reasons the applicant would not graduate from the 3rd Brigade (Bde) advanced Infantry training program (AIT[P]), including repeated unexcused absences and his inability to complete training requirements; recommended he be eliminated from the service, immediately. 7. Headquarters 3rd Brigade (Airmobile), Fort Hood TX, memorandum, subject: Dismissal of Personnel from AITP, dated 11 May 1973, shows the applicant was dismissed from the 3rd Brigade AITP due to being absent from training, repeatedly; never being in the proper uniform, and consistently insubordinate to superior officers and NCOs. The committee recommended that he be permanently dismissed and processed for elimination from service. 8. His record shows he was counseled on six occasions (monthly) between the period 16 July 1973 and 13 December 1973 for: * being AWOL * missing formation * poor performance of duty * failing to follow instructions on the range and creating a safety issue * failing to get a haircut 9. On 9 July 1973, the applicant went absent without leave (AWOL) to 15 July 1973. 10. On 5 September 1973, the applicant was being treated at the troop medical clinic and was very abusive to the medical personnel who were trying to treat him. When the medical specialist tried to inquire about his injuries, the applicant responded "F_ you, no one is talking to you." After being told he could leave the clinic, the applicant told the medical specialist that he did not know what he was doing. He continued to be disrespectful and refused treatment. 11. On 10 September 1973, his immediate commander initiated a bar to reenlistment against the applicant for receiving two Article 15s, UCMJ; numerous verbal reprimands; being AWOL; continuous absences; and habitual shirking of responsibility. On 28 January 1974, the bar to reenlistment was approved. 12. On 27 November 1973, he accepted nonjudicial punishment for being AWOL from 1 November 1973, remaining absent until 2 November 1973. His punishment consisted of forfeiture of $75.00, 14 days extra duty, and 14 days restriction. 13. On 3 January 1974, the commander evaluated the applicant. He stated, in pertinent part, the applicant had numerous problems in adjusting to and maintaining the standards of conduct and performance required by the U.S. Army. The applicant indicated on numerous occasions during counselling sessions that he fully understood the consequences of his unsatisfactory performance and stated he would like to remain in the Army. He had numerous opportunities to become an effective Solider, but as a result of his extremely poor attitude he had no real desire to remain in the service. He demonstrated an unwillingness to obey orders and had a complete disregard for any type of authority. He was a substandard Soldier with no potential for grade advancement. 14. The commander recommended the applicant be discharged un the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-37. The reason for his proposed action was because of acceptability for the service and potential for continued effective service fell below the standards required for enlisted personnel in the U.S. Army. The Soldier was counseled on numerous occasions by the company commander, platoon leader, and brigade Champlain about the duties and standards of an Ammo Bearer, military occupational specialty 11B. Counselling sessions were also held with respect to his failure to demonstrate the standards of conduct and ability required by the Army. Elimination for unfitness or unsuitability was is not appropriate. 15. The applicant submitted a statement stating during the period of 1 August 1973 and 15 December 1973, he was counseled on numerous occasions as to the adverse actions which could be taken against him should he continue to fail to demonstrate the standards of conduct and ability required by the Army. 16. The chain of command recommended approval of the separation with a general discharge and on 5 February 1974, the appropriate separation authority approved the separation under AR 635-200, paragraph 5-37 because of failure to demonstrate potential for promotion advancement and directed he be issued a General Discharge Certificate. 17. On 26 February 1974, he was discharged accordingly. His service was characterized as under honorable conditions (general). He completed 1 year, 2 months, and 5 days of his 4-year contractual obligation. His DD Form 214 shows he had 8 days lost time and he was awarded or authorized a Rifle Marksman Marksmanship Qualification Badge. 18. The applicant requests an upgrade of his discharge and personal appearance before the Board. The applicant states he was 17 years old and a high school dropout when he decided to serve his country. Any and all misconduct on his behalf was minor while his intentions from the outset were faithful and honorable. It has been over 46 years since his discharge. He had overcome his share of obstacles and has lived an honorable life worthy to be proud of at the age of 64 years old. It is time for his DD Form 214 to reflect his honorable life. a. His record shows he enlisted at the age of 17 years old. He was counseled on six occasions; he accepted two NJPs (record contains one NJP; his immediate commander indicated he had two). He had 8 days lost time due to being AWOL. He completed 1 year, 2 months, and 5 days of his 4-year contractual obligation. b. In regards to the applicant's request for a personal appearance, Army Regulation 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. c. AR 635-200, paragraph 5-37, for failure to demonstrate promotion potential, provided personnel whose performance of duty, acceptability for the Service, and potential for continued effective service fall below the standards required for enlisted personnel in the US Army may be discharged if they failed to be advanced to the grade of E-2 after 4 months of AD. Soldiers could receive either an honorable or a general, under honorable conditions character of service. 19. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. After reviewing the application, evidence in the records and all supporting documents, the Board found that relief was not warranted. 2. The Board carefully considered the applicant’s request in light of published guidance on equity, injustice, or clemency. Based on the totality of the applicant’s misconduct, evidence of proper counselings and that the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 3. After reviewing the application and all supporting documents, the Board determined they could reach a fair and equitable decision in the case without a personal appearance by the applicant. 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 Board determined that 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. 6/30/2021 X JAMES A BAXLEY CHAIRPERSON Signed by: BAXLEY.JAMES.ARTHUR.1070727516 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 3. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, prescribed policies and procedures for enlisted administrative separations. 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. Paragraph 5-37, discharge for failure to demonstrate promotion potential, provided personnel whose performance of duty, acceptability for the Service, and potential for continued effective service fall below the standards required for enlisted personnel in the US Army may be discharged if he/she failed to be advanced to the grade of E-2 after 4 months of AD. (1) A commander who elects not to promote must counsel the individual verbally as to the reasons for his action, to include circumstances which clearly indicate that the soldier's attitude and/or performance do not measure up to Army standards. Counseling will be recorded in a written statement signed by the commander and the member. The written statement will also include, over the member's signature, a statement that he understands his status, what is expected of him, and what he can anticipate for nonperformance. (2) Commanders who elect not to promote may elect to initiate separation action in accordance with this paragraph within 30 days of such denial of promotion. If separation action is not initiated within 30 days after initial denial of promotion, the commander may reconsider members in grade E-1 or E-2 for promotion in 30-day increments up to a total of 4 months after initial denial of promotion. At the end of each 30-day period, the commander may promote, retain and counsel, or recommend discharge. Maximum use of this period to assist the soldier to overcome deficiencies is encouraged. At the end of the 4-month period, the commander must promote to E-2 or E-3, or must initiate discharge action. (3) When the commander elects to initiate separation action in accordance with this paragraph, he will forward a recommendation for discharge through channels to the commander having approval authority. The recommendation will be for discharge for failure to demonstrate adequate potential for promotion and will include the following information: (4) Normally, an honorable discharge will be awarded unless the soldier's conduct clearly substantiates a general discharge. Commanders exercising special court-martial jurisdiction are authorized to take final action in all cases involving separation with an honorable discharge. Cases in which a general discharge is recommended will be forwarded to commanders exercising general court-martial jurisdiction for final action. 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. 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 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. 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//