IN THE CASE OF: BOARD DATE: 30 January 2023 DOCKET NUMBER: AR20220002723 APPLICANT REQUESTS: Reconsideration of his previous request for upgrade of his under honorable conditions (general) discharge to an honorable discharge. Additionally, he requests: . correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his last name as " " instead of " " . a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record) . Certificate of Live Birth . DD Form 214, for the period ending 19 November 1969 . Email to Department of Veterans Affairs (VA) . VA Statement of Service Letter FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers AR20100023081, AR20110022602, and AR20190002800 on 28 February 2011, 21 May 2012, and 6 September 2019, respectively. 2. As a new argument, the applicant states there is no truth in his discharge papers. The only thing he knew was that he got into a fight with a white boy and was reported. His birth name is . He doesn’t understand why he was given a discharge under honorable conditions. 3. The applicant was inducted into the Army of the United States on 9 June 1967. A DD Form 47 (Record of Induction) prepared during his enlistment processing shows his last name as “ ”. He was honorably discharged on 15 June 1967 for immediate enlistment in the Regular Army. He was issued a DD Form 214 that shows he was credited with 6 days of honorable service. 4. A DD Form 4 (Enlistment/Reenlistment Document) shows the applicant enlisted in the Regular Army on 15 June 1967, for 3 years. The last name on this form is . His military occupational specialty was 68H (Aircraft Hydraulics Repairman). 5. The applicant served in Vietnam from 16 February 1968 through 21 May 1968 and 9 February 1969 through an undetermined date in November 1969. 6. Before a Summary Court Martial (SCM) on 21 August 1969 the applicant was found guilty of, without proper authority failure to go at the time prescribed to his appointed place of duty, on or about 1 August 1969. He was sentenced to forfeiture of $50.00 for one month and extra duty; the sentence was approved on 21 August 1969. 7. A DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 9 October 1969, shows the applicant was being recommended for elimination from the service for unsuitability under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge Unfitness and Unsuitability). He was being recommended for discharge because of repeated incidents of misconduct. 8. A Report of Psychiatric Evaluation, dated 18 October 1969, shows the applicant was evaluated at the Mental Hygiene Consultation Service. The examination revealed there was no evidence of psychosis or neurosis. He was diagnosed with passive-aggressive personality; future rehabilitative efforts would most likely be unsuccessful. There was no psychiatric disease or defect which warranted disposition through medical channels. He had the mental capacity to understand and participate in board proceedings. The examining psychiatrist recommended the applicant be administratively separated. 9. The applicant’s commander and witnesses stated on 24 October 1969, in pertinent part, the applicant: . was often belligerent and borderline insubordinate . assaulted another Soldier, by hitting and attempting to choke him . was a part of a black militant group that threw a grenade near the noncommissioned officers sleep tent and showers . conducted himself unsatisfactorily . could not be rehabilitated, and every attempt to help him had been met with a rebellious attitude 10. The applicant’s commander notified the applicant of his intent to eliminate him form the service under the provisions of Army Regulation 635-212 due to his continual incidents of misconduct. The applicant acknowledged receipt on the same date. 11. After consulting with counsel on 3 November 1969, the applicant acknowledged that he had been advised by legal counsel of the basis for contemplated action to separate him from service for unsuitability. He waived consideration of his case by a board of officers and personal appearance. He did not submit statements on his own behalf, and he waived representation by military counsel. He also understood he: . may encounter substantial prejudice in civilian life if he were issued an undesirable discharge . may be ineligible for many or all benefits as a Veteran under both Federal and State laws . may expect to encounter substantial prejudice in civilian 12. On 6 November 1969, the applicant’s commander formally recommended his elimination from service under the provisions of Army Regulation 635-212, based on unsuitability. His commander noted during the period 14 February to 6 November 1969 the applicant had been assigned to various duty assignments (two different companies) commensurate with his training and ability and had served under different superior officers and noncommissioned officers. In each instance, his performance of duty was less than satisfactory. 13. The separation authority approved the recommended discharge on 9 November 1969, and directed the issuance of a DD Form 257A (Undesirable Discharge Certificate). 14. The applicant was discharged on 19 November 1969. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-212, with Separation Program Number (SPN) 264 [unsuitability]. His service was characterized as under honorable conditions. He completed 2 years, 5 months, and 5 days of net active service this period. It also shows he was awarded or authorized the: National Defense service Medal, Army Good Conduct Medal, and the Vietnam Service Medal with device. 15. A review of the applicant's official military records reveals he served under the last name throughout the entire period of his active duty service. 16. The applicant provides: a. A State of Certificate of Live Birth that shows the applicant’s last name as " ," dated 18 March 1999. b. An email to a VA Representative, regarding his discharge papers. He stated he is a Vietnam Veteran and was given a discharge that he did not fully understand what it meant at the time to his future as a veteran. He was not given the opportunity to defend himself nor face his accuser. He now understands, as a young man entering into the military in the 1960’s and being black, that he was taken advantage of both financially and physically. He is not asking for any monetary compensation, only that his discharge be given the type that he deserves which is honorable and nothing else. c. A VA letter, dated 1 February 2012, which states the applicant was honorably discharged from the U. S. Armed Forces having serviced during the period of 9 June 1967 to 15 November 1969. 17. On 28 February 2011, the ABCMR denied the applicant request for correction of his record to show his correct last name. The Board determined the evidence presented did not demonstrate the existence of a probable error or injustice. His request was denied. 18. On 21 May 2012, the ABCMR denied the applicant request to show his birth date as . The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommended that all Department of the Army records of the individual concerned be corrected by deleting from item 9 of his DD Form 214, for the period ending 19 November 1969, the current entry and replacing it with the entry as shown in item 9 of his DD Form 214 for the period ending 15 June 1967. He was issued a DD Form 215 (Correction to DD Form 214) on 16 July 2012 that updated his date of birth. 19. On 6 August 2020, the ABCMR denied the applicants request for upgrade of his discharge. The Board determined there was insufficient evidence of in-service mitigation to overcome the misconduct, 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 that the character of service the applicant received upon separation was not in error or unjust. 20. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 21. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. BOARD DISCUSSION: 1. The applicant's request for a personal appearance was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance before the Board is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Documentation available for review is void new evidence presented, post-service achievements or letters of reference for consideration of 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. 3. The Board further determined that relief was not warranted for that portion of the request regard a correction to his last name. The Board carefully considered applicant’s contentions, military record and regulatory guidance. Evidence of record shows the contested name was used consistently throughout the applicant’s period of service. As the Army has an interest in preserving the integrity of the record and for the purposes of continuity, the Board relief was not warranted. 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 to amend the decision of the ABCMR set forth in Docket Numbers AR20100023081, AR20110022602, and AR20190002800 on 28 February 2011, 21 May 2012, and 6 September 2019, respectively. 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. Army Regulation 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 begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 635-5 (Separations Documents), in effect at the time of the applicant's active duty service, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for the preparation of the DD Form 214. It stated the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active service. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. 3. Army Regulation 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. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. Paragraph 3-7b (General Discharge) states A general discharge is a separation from the Army under honorable conditions. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) governs the policies and procedures for the separation of enlisted personnel. This regulation 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 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 upgrade 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. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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 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. 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//