IN THE CASE OF BOARD DATE: 16 March 2023 DOCKET NUMBER: AR20220003599 APPLICANT REQUESTS: the characterization of his discharge be upgraded from under honorable conditions (general) to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: a DD Form 149 (Application for Correction of Military Record). FACTS: 1. The applicant did not file within three-year time frame provided in Title 10, U.S. Code, 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, in effect, he stayed at home too long because he had to help his sick mother and raise a newborn baby. 3. The record shows the applicant enlisted in the Regular Army on 25 September 1972. 4. His record of misconduct includes accepting non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on four occasions for the indicated offenses between August 1973 and May 1975: * for being absent from his appointed place of duty * for failing to go to his appointed place of duty * for failing to go to his appointed place of duty on three occasions * being absent without leave (AWOL) from 7 May 1975 to 14 May 1975 5. The applicant's DA Form 2-1, Personnel Qualification Record, shows he accumulated 307 days of lost time between 20 July 1973 to 30 September 1975. This form further shows the applicant had five periods of AWOL, two periods of desertion, and two periods of imprisonment. The second imprisonment extended beyond his expiration of service. 6. Before a Special Court-Martial (SPCM) in August 1974 at Fort Rucker, AL, the applicant pled guilty and was found guilty of three specifications for being AWOL from 18 January to 13 February 1974, 4 March to 15 April 1974, and 17 June to 31 July 1974. The court sentenced him to reduction to private, forfeiture of pay, and confinement to hard labor for 140 days. The sentence was adjudged on 22 August 1974. 7. SPCM Order Number 2205, published by the U.S. Army Retraining Brigade, 20 November 1974, Fort Riley, KS, suspended the unexecuted portion of the approved sentence until 8 January 1975, at which time the suspended portion would be remitted, unless sooner vacated. 8. SPCM Order Number 38, published by Headquarters, Support Command, 1st Cavalry Division, Fort Hood, TX, 18 August 1975, shows the applicant pled guilty and was found guilty of being AWOL from 8 July 1975 to 29 July 1975. The court sentenced him to reduction to private, forfeiture of pay, and confinement at hard labor for 2 months at the Area Confinement Facility, Fort Hood, TX. 9. On 8 September 1975, the applicant's commander recommended he be discharged from service for unfitness – frequent incidents. His commander stated the applicant's attitude, potential and motivation for further military service did not warrant consideration for retention in the U.S. Army. 10. The applicant underwent a mental status evaluation on 12 September 1975, which found him mentally responsible, able to participate in board proceedings and that he met retention standards. 11. His separation physical was also conducted on 12 September 1975. The applicant reported that he was in good health but had experienced insomnia, nervousness, and depression in the past; however, those conditions had been resolved. A medical officer found the applicant was qualified for separation. 12. The applicant's record is void of a complete separation packet; however, his DD Form 214, Report of Separation From Active Duty, shows he was discharged on 17 October 1975 under the provisions of Army Regulation 635-200, Personnel Separations-Enlisted Personnel, paragraph 13-5a(1), unfitness, frequent incidents of discreditable nature with civil or military authorities. His service was characterized as under honorable conditions (general) (Separation Code JLB, Reentry Code 3B). He completed 2 years, 2 months, and 10 days of net service of with 308 days of lost time. 13. Subsequent to his discharge the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of the characterization of his service. On 14 March 1980, the ADRB notified the applicant that after careful consideration of his overall military record, they determined that he was properly and equitably discharged and denied his request. 14. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 15. A separation for unfitness included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debits, failure to support dependents and homosexual acts. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense 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 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 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 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, U.S. Code, 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 Army Board for Correction of Military Records 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, Personnel Separations - Enlisted Separations, provides: 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. c. Paragraph 13-5(a), in effect at the time, for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debits, failure to support dependents and homosexual acts. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. 4. 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 begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003599 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1