IN THE CASE OF: BOARD DATE: 30 September 2022 DOCKET NUMBER: AR20220002402 APPLICANT’S REQUEST: Upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) dated 18 November 2021. 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 that he did not get the counseling nor legal services he thought he should have received to help him through the situation. He feels that he was railroaded out and did not have the opportunity to do what he wanted to do. He loves this country, then and now. 3. On 10 March 1972, the applicant enlisted in the Regular Army for three years. 4. The applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates, while stationed at Fort Ord, California: * 27 April 1972, for being absent without leave (AWOL) from on or about 20 April 1972 to on or about 25 April 1972 * 12 June 1972, for being AWOL from on or about 5 June 1972 to on or about 12 June 1972 * 15 June 1972, for failing to go at the time prescribed to his appointed place of duty, on or about 14 June 1972 * 20 June 1972, for being AWOL and breaking restriction, on or about 16 June 1972 to on or about 18 June 1972 5. The applicant was notified on 27 June 1972 of his immediate commander's intent to initiate separation actions against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), by reason of unfitness for military service due to frequent incidents of a discreditable nature with civil or military authorities. The commander stated the applicant became a disciplinary problem in the third week of training when he refused to train with the rifle. He has shirked at every opportunity and has been counseled numerous times for his inefficiency in accomplishing simple tasks and disobeying orders, He has just received three Article 15s for AWOL and had been thoroughly counseled on his conduct and inefficiency. He is undergoing a Battalion Article 15 for another AWOL and breaking restriction. 6. The applicant underwent a psychiatric evaluation on 28 June 1972, which found him mentally capable to understand and participate in board proceedings. 7. Statement of counseling dated 29 June 1972, shows the applicant was advised by counsel of the basis for the contemplated action to accomplish his separation and he: * waived consideration of his case by a board of officers * elected not to submit statements in his own behalf * waived representation of military or civilian counsel * understood he may be deprived of many rights and benefits as a Veteran under both Federal and State law * understood he may encounter substantial prejudice in civilian life if he were issued an undesirable discharge 8. The applicant's commander formally recommended his discharge, under the provisions of Army Regulation 635-212, based on unfitness. 9. The separation authority approved the recommended action on 13 July 1972 and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 10. The applicant was discharged on 27 July 1972. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged under the provisions of Army Regulation 635-212, with Separation Program Number "28B" by reason of unfitness. His service was characterized as UOTHC. He completed 4 months, and 5 days of net active service this period. He was awarded or authorized the National Defense Service Medal. 11. 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. 12. 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: 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 liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was discharged from active duty due to unfitness following an extensive history of NJP due to AWOL and frequent incidents of a discreditable nature with civil or military authorities. 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. 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: 1. 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 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 635-200 (Personnel Separations – Enlisted Personnel), then in effect, provided the criteria governing the issuance of honorable, general, and undesirable discharge certificates. a. Paragraph 1-9d provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 1-9e provided that a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. Army Regulation 635-212, then in effect, provided 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. 4. 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) AR20220002402 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1