IN THE CASE OF: BOARD DATE: 26 May 2023 DOCKET NUMBER: AR20220010815 APPLICANT REQUESTS: Reconsideration of his previous request for upgrade of his undesirable discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge) in lieu of DD Form 149 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 Number AR20190010527 on 13 September 2019. 2. The applicant states: a. He was approved for 15 days of leave to tend to his mother who was ill at that time. During this period, his father died which added more problems, but he was able to return since his brother was available to care for his mother. About two to three weeks after that, he received news that his brother died in a motor vehicle accident. He requested leave again but was denied. Instead of explaining the situation to get approval for emergency leave, he decided to go absent without leave (AWOL) which he regrets to this date. b. He was under a lot of stress due to his mother's health and his brother had been the only family available to take care of her. This led him to make the mistake that ended his military career. Instead of asking for assistance from his chain of command and trust that they would provide all the support he needed during this very hard time, he decided to take matters into his own hands. He respectfully requests leniency and understanding of his actions. He has been a responsible and law-abiding individual since his discharge and granting his request will help him obtain Department of Veterans Affairs (VA) benefits that can help him and his family tremendously. 3. The applicant enlisted in the Regular Army on 18 January 1967 for 2 years. He did not complete training for award of a military occupational specialty. 4. Special Court-Martial Order Number 533, issued by Headquarters, U.S. Army Garrison Troops, Fort Hood, TX on 13 July 1967, shows the applicant was found guilty of being AWOL from on or about 15 April 1967 until on or about 20 June 1967. His approved sentence was confinement for 4 months and forfeiture of $37.00 per month for 4 months. Adjudged on 1 July 1967. 5. The applicant was afforded a Mental Hygiene Consultation on 18 July 1967. The attending physician stated the applicant had been in the Army for six months, two of which were spent in an AWOL status. He had no motivation to serve and wanted out under any type of discharge. He stated that he was having family problems, but was not willing to apply for a hardship separation. He had little insight into his difficulties and has not learned from past experience. He responds to uncomfortable situations in a passive aggressive manner and is prone to continue to display disruptive, inappropriate behavior. The applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, and has the mental capacity to understand and participate in any board proceeding. He was recommended for separation as prospects for rehabilitation were poor. He was diagnosed with a passive aggressive personality. 6. Special Court-Martial Order Number 130, issued by Headquarters, U.S. Army Garrison Troops, Fort Hood, TX on 1 February 1968, found the applicant guilty of being AWOL from on or about 16 October 1967 until on or about 15 January 1968. His approved sentence was confinement for 6 months and forfeiture of $37.00 per month for 6 months. Adjudged on 1 February 1968. 7. Special Court-Martial Order Number 694, issued by Headquarters, U.S. Army Garrison Troops, Fort Hood, TX on 26 June 1968, found the applicant guilty of being AWOL from on or about 7 February 1968 until on or about 18 June 1968. His approved sentence was confinement for 6 months and forfeiture of $20.00 per month for 6 months. Adjudged on 26 June 1968. 8. Special Court-Martial Order Number 470, issued by Headquarters, U.S. Army Garrison Troops, Fort Hood, TX on 11 April 1969, found the applicant guilty of two specifications of being AWOL from on or about 22 November 1968 until 12 December 1968 and from on or about 18 December 1968 until 4 April 1969. His approved sentence was confinement for 6 months and forfeiture of $45.00 per month for 6 months. Adjudged on 11 April 1969 9. The applicant was afforded a second mental hygiene consultation on 11 April 1969. The Social Work Officer stated, the applicant had been confined in the stockade for a fifth time due to his immature ways of handling his problems. He had no motivation to return to duty and was disruptive to himself and others when he was on duty; because of this it was felt that further rehabilitative attempts would be unlikely to bring about significant changes in his behavior. He was diagnosed with a passive aggressive personality. It was again recommended he be eliminated from the service. 10. On 18 April 1969, the applicant was found physically and mentally fit for duty without limitations. He was responsible for his acts and able to understand and participate in board proceedings. 11. The available record is void of the applicant's notification memorandum. However, on 18 April 1969, he was advised by counsel of the contemplated separation action under the provisions of Army Regulation 635-212 (Personnel Separations-Unfitness and Unsuitability), for unfitness. He acknowledged that he: . had been afforded the opportunity to be represented by counsel . elected not to submit statements in his own behalf . may be deprived of many rights and benefits as a veteran under both Federal and State law . may encounter substantial prejudice in civilian life if he were issued an undesirable discharge 12. On 6 May 1969, the applicant's immediate commander formally recommended the applicant's separation under the provisions of Army Regulation 635-212, for unfitness. The cited reasons were the applicant's five special court-martial convictions and 484 days of lost time due to his periods of AWOL. 13. The intermediate commander recommended approval of the discharge for unfitness, with an undesirable characterization of service. The separation authority approved the recommended discharge on 23 May 1969 and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 14. The applicant was discharged on 6 June 1969 in the pay grade of E-1. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-212, with Separation Program Number 28B (unfitness). His service characterization was under conditions other than honorable. He was credited with 6 months and 25 days of net active service, and eight periods of lost time totaling 621 days. 15. The ABCMR denied the applicant's request for upgrade on 13 September 2019. The Board determined the evidence presented did not demonstrate the existence of a probable error or injustice. Therefore, the overall merits of the case were insufficient as a basis for correction of the records. 16. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s 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 noted the applicant indicated he was having family problems, but was not willing to apply for a hardship separation and elected to continue the patterns of misconduct. 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 upon 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 to amend the decision of the ABCMR set forth in Docket Number AR20190010527 on 13 September 2019. 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) sets forth procedures for processing requests for the correction of military records. Paragraph 2-15a governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR. The applicant must provide new evidence or argument that was not considered at the time of the ABCMR's prior consideration. The ABCMR will decide cases on the evidence of record and it is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation (Personnel Separations -Unfitness and Unsuitability), in effect at the time, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. 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. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NR) on 25 July 2018, 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 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//