IN THE CASE OF: BOARD DATE: 20 January 2023 DOCKET NUMBER: AR20220004554 APPLICANT REQUESTS: change his character of service from under honorable conditions (general) to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record), 4 January 2022 FACTS: 1. The applicant did not file within the 3-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 at the time of his discharge he was influenced by the turmoil surrounding the Vietnam War and the treatment of the Soldiers by the general public. On 1 June 2014, he returned to the federal service as a registered nurse and on 31 December 2021 he retired. He would like to be reconsidered due to his age and political unrest. He was discharged without incident from 3. The applicant enlisted in the Regular Army on 8 October 1971. He held military occupational specialty 91B (Dental Specialist). 4. He has service in from 16 October 1972 to 7 October 1974. 5. On 6 February 1973, he accepted nonjudicial punishment (NJP) under Article 15 for, on 31 January and 5 February 1973 failing to go to his place of duty. His punishment included forfeiture of $50.00 pay, suspended until 9 March 1973; and extra duty for 14 days, 7 days suspended until 9 March 1973. Applicant submitted an appeal. 6. On 12 February 1973, he accepted a Letter of Reprimand for failing to comply with Chapter 6, Army Regulation 600-20 (Army Command Policy), which specifies the acceptable haircut standards for members of the U.S. Army. 7. On 30 March 1973, he accepted NJP under Article 15 for, on 2 March and 9 March 1973 for failing to go to his place of duty. His punishment included reduction to private first class/E-3, suspended until 30 May 1973, forfeiture of $85.00 pay. 8. On 4 June 1973, he accepted NJP under Article 15 for, on 30 May 1973 failing to go to his place of duty. His punishment included forfeiture of $85.00 pay, and extra duty for 14 days, at two hours per day. 9. On 18 June 1973, he accepted NJP under Article 15 for, on 15 May 1973 failing to obey a lawful order. His punishment included reduction in grade from specialist to private first class, and extra duty for 7 days, at two hours per day. 10. On 29 November 1973, he accepted NJP under Article 15 for, on 19 November 1973 for wrongfully possessing marijuana. His punishment included reduction to private two, suspended for 60 days, extra duty for 14 days, seven of which suspended for 60 days. 11. The applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), paragraph 13-5b, for unsuitability. His commander's rationale for the proposed action was due to multiple counseling’s. He further states the applicant has worked for two different company commanders with no apparent change in his attitude toward the military. 12. On 5 February 1974, the applicant acknowledged receipt of his commander's intent to initiate separation action against him for unsatisfactory performance. He consulted with counsel who advised him of the basis for the contemplated action to separate him for unsuitability under AR 635-200, Chapter 13, paragraph 13-5b, and its effect; of the rights available to him; and the effect of any action taken by him in waiving his rights. He waived consideration of his case by a board of officers and/or appearance before a boar of officers. He declined making a statement on his own behalf. He acknowledged: * he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him * he understood that, as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that I may expect to encounter substantial prejudice in civilian life 13. Subsequent to the applicant's acknowledgement, his immediate commander- initiated separation action against him under chapter 13 of AR 635-200 for unsuitability. The commander opined that the applicant's unwillingness to conform to military order and discipline hinders him from honorably serving in the military. The immediate commander recommended a general discharge. 14. The separation authority approved his discharge under the provision of paragraph 13-5b of AR 635-200, and directed the issuance of a general, under honorable conditions, discharge. The applicant was accordingly discharged on 28 March 1974. 15. His DD Form 214 shows he was discharged under the provisions of chapter 13 of AR 635-200 for unsuitability with a general, under honorable conditions characterization of service. He completed 2 years, 5 months, and 21 days of active service. He was awarded or authorized the National Defense Service Medal. 16. There is no indication he petitioned the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 17. By regulation (AR 635-200), chapter 13 provides that separation action be taken when in the commander’s judgment the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier. Service of Soldiers separated because of unsatisfactory performance under this regulation is characterized as honorable or under honorable conditions. 18. In reaching its determination, the Board can consider the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 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 unsuitability, following a pattern of misconduct (failure to repair, possession of marijuana, disobeying orders). He received a general discharge. 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: 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 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 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 13-2a provides that Commanders will separate a Soldier for unsatisfactory performance when it is clearly established that: (1) In the commander’s judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. (2) The seriousness of the circumstances is such that the Soldier’s retention will have an adverse impact on military discipline, good order, and morale. (3) The Soldier will likely be a disruptive influence in duty assignments. (4) The circumstances forming the basis for initiation of separation proceedings will likely continue or recur. (5) The Soldier’s ability to perform duties effectively is unlikely. (6) The Soldier’s potential for advancement or leadership is unlikely. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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. 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 based on 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. 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) AR20220004554 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1