IN THE CASE OF: BOARD DATE: 9 September 2022 DOCKET NUMBER: AR20220002255 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Report of Separation from Active Duty), for the period ending 30 August 1974 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), Section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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 that he feels his service was honorable. 3. The applicant's service record shows: a. On 28 April 1972, the applicant's mother signed a Consent, Declaration of Parental or Legal Guardian, consent for his enlistment into the Regular Army. On 5 May 1972, the applicant enlisted in the Regular Army at the age of 17, for a 3-year service commitment. b. He maintained excellent conduct and efficiency ratings throughout his One- Station-Unit-Training (OSUT). Upon completion of OSUT and award of MOS 63B (Wheel Vehicle Mechanic), orders assigned the applicant to Germany; he arrived at his unit on or about 5 October 1972. His chain of command promoted him to Private First Class (PFC) on 8 December 1972. c. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for the following offenses: * on 27 August 1973, for willfully breaking the handlebar of a Vespa Scooter, on or about 23 May 1973 * on 30 August 1973, for two specifications of willfully disobeying lawful orders from his superior noncommissioned officer (NCO) and superior warrant officer on or about 21 August 1973, his punishment included a 90-day suspended reduction to Private/E-2 * on 22 February 1974, for two specifications of absenting himself from his appointed place of duty on or about 11 February 1974, his punishment included a 30-day suspended reduction to Private/E-1 * on 13 March 1974, for one specification of absenting himself from his appointed place of duty on or about 21 February 1974, and one specification of willfully disobeying a lawful order from his superior NCO on or about 22 February 1974, his punishment included an oral reprimand and extra duty d. On 16 August 1974, the applicant's commander notified the applicant of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, for unsuitability. He acknowledged receipt on the same day. e. On 16 August 1974, the applicant's commander formally recommended, the applicant's separation from service under the provisions of Army Regulation 635-200, paragraph 13-5, by reason of unsuitability because of apathy and defective attitudes. The commander noted the applicant had been a problem Soldier since arriving, he had been counseled on various occasions, had been continuously involved in serous incidents, frequently absented himself form duty, refused to follow instructions and orders, and had a below standard appearance, attitude, and job performance. f. On 19 August 1974, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effects of a waiver of his rights. The applicant waived counsel and consideration of his case by a board of officers and elected not to make a statement in his own behalf. g. On 24 August 1974, the separation authority approved the applicant's discharge, under the provisions of Army Regulation 635-200, Chapter 13-5b (3), and directed the issuance of a DD Form 257A (General Discharge Certificate). h. On 30 August 1974, the applicant was discharged accordingly. The DD Form 214 he was issued shows his service was characterized as under honorable conditions. He was credited with completing 2 years, 3 months, and 26 days of net active service. He was awarded or authorized the National Defense Service Medal and Marksman M-16 Badge. 4. 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. 5. 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: 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 :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. 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 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 13 in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. It provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. 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. Paragraph 13-5b provided for the separation of Soldiers for unsuitability. (1) Sub-paragraph (1) applied to those Soldiers being separated for inaptitude. (2) Sub-paragraph (2) applied to those Soldiers being separated for character and behavior disorders [later deemed personality disorders]. (3) Sub-paragraph (3) applied to those Soldiers being separated for apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively. 3. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs 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// ABCMR Record of Proceedings (cont) AR20220002255 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1