IN THE CASE OF: BOARD DATE: 12 November 2020 DOCKET NUMBER: AR20200002238 APPLICANT REQUESTS: The applicant requests, in effect, an upgrade of his undesirable discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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: a. He is requesting his “general discharge under conditions less than honorable be reconsidered to honorable.” He believes it to be a little extreme. He did not murder anyone and commit adultery. At 19 years old who knows what the meaning of life is or what or where you are supposed to be. The court-martial was as though he committed all the above. He was dead wrong when he went absent without leave (AWOL) but not at the time. b. He looks back at the time he rebelled against the oath he took. He cannot change that. Since then he went back to school got his GED and went on to graduate from Shelton State College as a Certified Electrician, and has not been in jail for anything. Please review his records closely. He requests the Board reconsider his undesirable past. It has been more than 55 years ago. 3. On 9 February 1962, at the age of 17 years with 8 years of general education, the applicant enlisted in the Regular Army (RA) for a period of 3 years. He completed training requirements with conduct and efficiency ratings of excellent and was transferred to his first duty station in U.S. Army Europe. 4. His record contains documentation that shows: * on or about 7 February 1963, he received non-judicial punishment (NJP) under the provisions of Article 15 of Uniform Code of Military Justice (UCMJ) for absenting himself from his unit without proper authority from 0001 hours until 0200 hours on 7 February 1963; he did not appeal * 24 June 1963, he received NJP under the provisions of Article 15 of the UCMJ for absenting himself from his unit without proper authority on or about 2200 hours on 14 June 1963; he did not appeal * 21 July 1963, he received NJP under the provisions of Article 15 of the UCMJ for absenting himself from his unit without proper authority and wrongfully appearing in an improper uniform on 18 July 1963; he did not appeal * 21 November 1963, he received NJP under the provisions of Article 15 of the UCMJ for not being at his appointed place of duty on 19 November 1963; he did not appeal * 29 November 1963, he received NJP under the provisions of Article 15 of the UCMJ for wrongfully appearing in the improper uniform and not being at his appointed place of duty; he did not appeal * 28 January 1964, he received NJP under the provisions of Article 15 of the UCMJ for absenting himself from his unit from 1800 to 2030 hours on 24 January 1964; he did not appeal 5. On 24 June 1964, the applicant was arraigned, tried, and convicted by special court- martial for being AWOL from on or about 21 May to 19 June 1964. 6. On or about 1 July 1964, his chain of command approved and imposed a bar to reenlistment against him. 7. On or about 9 July 1964, a psychiatric evaluation and a medical examination cleared the applicant for administrative separation action deemed appropriate by his chain of command. 8. On 29 July 1964, his commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-208 (Personnel Separations – Discharge – Unfitness), for unfitness, and informed him of his rights. He elected to waive his right to a hearing before a board of officers, indicated he did not desire counsel, and elected not to submit a written statement in his own behalf. On this same day, the applicant acknowledged receipt of the notification. a. On 6 August 1964, his commander formally recommended him for discharge because of unfitness. His commander cited the applicant’s frequent breaches of conduct and discipline, untrustworthiness, lack of regard for the rights of others, and chronic indebtedness. b. His chain of command recommended approval of the separation action with the issuance of an Undesirable Discharge Certificate. c. On 18 August 1964, the General Court-Martial Convening Authority (separation authority) directed the applicant be discharged because of unfitness under the provisions of paragraph 10b(3) of AR 635-208, and further directed he be furnished an Undesirable Discharge Certificate. 9. On 5 September 1964, the applicant was discharged accordingly. The DD Form 214 he was issued shows he completed 2 years, 4 months, and 19 days of his 3-year contractual obligation. He was not awarded a personal decoration. 10. AR 635-208 establishes policy and provide procedures and guidance for the prompt elimination of enlisted personnel who are determined to be unfit for further military service. The regulation provides that, the convening authority is required to personally sign any action directing an undesirable discharge of an enlisted member under his command. The convening authority may direct discharge because of unfitness of an individual who has waived hearing by a board. 11. AR 635-200 (Enlisted Active Duty Administrative Separations) provides that: 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 is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 12. In reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. 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 :XX :XX :XX 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 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. AR 635-208 establishes policy and provide procedures and guidance for the prompt elimination of enlisted personnel who are determined to be unfit for further military service. The regulation provides, in pertinent par, the convening authority is required to personally sign any action directing an undesirable discharge of an enlisted member under his command. The convening authority may direct discharge because of unfitness of an individual who has waived hearing by a board. 3. AR 635-200 (Enlisted Active Duty Administrative Separations) provides that: 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 is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 4. 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. 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) AR20200002238 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200002238 6 ABCMR Record of Proceedings (cont) AR20200002238 5