IN THE CASE OF: BOARD DATE: 16 March 2021 DOCKET NUMBER: AR20200008634 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 28 June 2020 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 17 September 1968 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 his bad conduct occurred during off duty hours and not during duty hours. Peer pressure during off duty hours forced his bad conduct. 3. The applicant enlisted in the Regular Army on 20 January 1967. 4. The applicant accepted non-judicial punishment (NJP) on 2 March 1967, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for falling asleep while performing fire guard duty, on or about 27 February 1967. 5. The applicant served in Thailand from on or about 9 June 1967 through on or about 5 July 1968. 6. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on the following occasions: a. On 18 September 1967, for stealing food from the consolidated mess hall with a value of about $3.00, the property of the U.S. Government, on or about 16 September 1967. b. On 21 September 1967, for altering his ration card in order to purchase more items, on or about 15 August 1967. 7. Unit order number #78, dated 21 September 1867, shows the applicant was reduced in rank/grade from private first class (PFC)/E-3 to private (PV2)/E-2, effective 21 September 1967. 8. The applicant underwent a psychiatric evaluation on 23 April 1968. The report shows he had repeated acts of misconduct during his military service. He revealed an immature personality with poor judgment and poor impulse control. It was considered unlikely that rehabilitative measures would be of any value. The evaluating physician determined he had no mental defects to warrant disposition through medical channels, he was mentally responsible, understood right from wrong, and was able to participate in board proceedings. 9. Before a special court-martial on or about 8 May 1968, at Headquarters, United States Army Support, Thailand, the applicant was found guilty of assaulting by placing a switchblade knife at his neck and unlawfully carrying a concealed weapon, a switchblade, on or about 21 March 1968. The court sentenced him to reduction to the rank/grade of private/E-1, confinement of hard labor for four months, and forfeiture of $68.00 pay for six months. 10. Before a special court-martial on or about 5 August 1968, at Headquarters, United States Army Support, Thailand, the applicant was found guilty of having in his personal items a black handle knife approximately eleven inches in length; wrongfully having in his possession with intent to deceive, a fraudulent pass; and wrongfully communicating to, a fellow Soldier, a threat to kill him, on or about 15 July 1968. The court sentenced him to confinement for four months and forfeiture of $60.00 pay per month for four months. 11. The applicant's commander formally recommended the applicant's discharge on 25 July 1968, under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), based on unfitness. As the reasons cited, his commander stated: * the applicant has had repeated acts of misbehavior during his military service, resents all authority, and seems unwilling to respond to any rehabilitative measures * his attitude toward any manner of authority is one of complete contempt and disregard, and continually commits petty offenses which bring discredit both to himself and to the US Army * his behavior is a detriment to the public image of the United States Armed Forces and casts doubts as to the caliber of military personnel which now serve in foreign lands 12. The applicant acknowledged receipt of the recommended separation action on 6 August 1968 and acknowledged that he: * had been afforded the opportunity to be represented by counsel but waived representation * 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 a general discharge 13. The separation authority approved the recommended action on 23 August 1968 and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 14. The applicant was discharged on 17 September 1968, under the provisions of Army Regulation 635-212, by reason of unfitness, and his service was characterized as UOTHC. 15. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB considered his petition on 4 January 1977, determined he was properly and equitably discharged, and denied his request for relief. 16. The applicant petitioned the ADRB for an upgrade of his discharge. The ADRB considered his petition again on 15 April 1982, determined he was properly and equitably discharged, and denied his request for relief. 17. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board determined relief was not warranted. 2. Based upon documentation available for review, the Board determined that the totality of the applicant’s misconduct which included falling asleep while on guard duty, theft, altering his ration card in order to purchase more items, and assault, that an upgrade 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: 1. That the applicant was properly and equitably discharged. 2. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 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. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Boards for Correction of Military/Naval Records, on 25 July 2018, regarding equity, injustice, or clemency determinations. a. 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. b. 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. c. 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) AR20200008634 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200008634 6 ABCMR Record of Proceedings (cont) AR20200008634 5