IN THE CASE OF: BOARD DATE: 6 February 2018 DOCKET NUMBER: AR20160006167 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AC81-05821-A on 13 April 1983. 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. IN THE CASE OF: BOARD DATE: 6 February 2018 DOCKET NUMBER: AR20160006167 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :QAS :SMP :SMP DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 6 February 2018 DOCKET NUMBER: AR20160006167 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration of his earlier request to upgrade his under honorable conditions (general) discharge to an honorable discharge. 2. The applicant states he received a certification of his military service for the first time on 31 December 2014. 3. The applicant defers further argument and evidence to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel states: a. The applicant’s general discharge characterization was in error because the narrative reason for separation on his DD Form 214 (Report of Separation from the Armed Forces of the United States) indicates expiration of term of service (ETS) rather than a form of misconduct. b. The applicant believes his general discharge characterization was an injustice because, other than one minor offense, he completed his service without misconduct. c. The applicant further believes his general discharge characterization was an injustice because he has been an upstanding citizen since his discharge, as evidenced by letters from his friends and family. d. The applicant discovered his discharge was general, under honorable conditions on 31 December 2014, when he received a certificate of his service. He was unable to obtain verification of his discharge before this time because his records were destroyed in the 1973 National Personnel Records Center (NPRC) fire. e. On 8 December 1950, he enlisted in the U.S. Army for 3 years in Philadelphia, PA, during the Korean War. After he completed training, he was sent to Germany to serve with the 293rd Engineer Battalion. His DD Form 214 shows he served 2 years, 2 months, and 17 days in Germany. f. The narrative reason for separation listed on his DD Form 214 shows "Army Regulation (AR) 615-360 (Enlisted Personnel Discharge) ETS." The narrative reason of ETS indicated he completed his full 3-year term of service. Because he completed the full period for which he enlisted and the record is devoid of misconduct, he should receive an honorable discharge. g. In the winter of 1953, the applicant recalled that a senior noncommissioned officer (NCO) reprimanded him for driving too fast on post. Despite being punished, he continued to dispute both the punishment and that he was driving too quickly. He believes the NCO did not like him because he was an African American athlete who often played sports with more senior service members. He believes the lone driving offense led to being issued a general discharge. h. Shortly after he was reprimanded for the driving offense, he contracted tuberculosis. He recalls nearly dying from the illness and was hospitalized near the end of his enlistment both in Germany and in the United States. After completing his full 3-year term of service in the Army, he was discharged on 30 April 1954. i. His general discharge was unjust because he completed his full 3-year year term of service with only one minor act of misconduct; an offense which he maintains he did not commit. j. On 15 February 2015, his longtime friend, Ms. RM, along with the applicant's youngest son, wrote letters in support of his discharge upgrade. k. Ms. RM wrote the applicant went on to earn a teaching certificate in Pennsylvania and he mentored troubled youth by encouraging them to go to college or join the Armed Services. His son wrote his father began a Reserve Officers’ Training Corps (ROTC) program in inner city Pennsylvania for troubled youth, and his father was one of the first African American business owners at the Philadelphia airport. These letters substantiate the applicant lived an upstanding life after his discharge in 1954. l. It is very important to the applicant that he receive an honorable discharge before his death. He believes he served honorably and would like to die knowing his service was recognized as honorable. 2. Counsel provides: * United States of America Certification of Military Service, dated 30 April 2015 * Character reference letters CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC81-05821-A on 13 April 1983. 2. The applicant provides a new argument that warrants consideration by the Board. 3. The applicant's complete military records are not available for review. A fire destroyed approximately 18 million service members’ records at the NPRC in 1973. The Army personnel records affected dated between November 1912 and January 1960. It is believed his records were lost or destroyed in that fire. However, the NPRC has provided a reconstructed record, which includes the applicant's DD Form 214 and hospital records. These documents offer a sufficient basis to address his request. 4. His reconstructed record contains a DD Form 214 showing: * enlistment in the Regular Army on 8 December 1950 for a term of 3 years * discharged on 30 April 1954 with a character of service of under honorable conditions (general) * attained the temporary rank of private first class * separated at Valley Forge Army Hospital, PA * completed 3 years, 1 month, and 19 days of net active creditable service, with 94 days of lost time and 2 years, 2 months, and 17 days of foreign and/or sea service * awarded or authorized the Army of Occupation Medal (Germany) and the National Defense Service Medal * most significant duty assignment was with the 293rd Engineer Construction Battalion * item 38 (Remarks) shows paragraph 11 (Classes Ineligible for Enlistment), SR (Special Regulation) 615-105-1 (Enlisted Personnel – Recruiting for the Regular Army) applies 5. His reconstructed record contain the following documents: a. Standard Form (SF) 502 (Clinical Record Narrative Summary) showing he was admitted in a patient status to U.S. Army Hospital, Landstuhl, Germany, on 2 November 1953. b. WD AGO Form 8-118 (Disposition Board Proceedings), dated 3 February 1954, indicated the applicant was assigned to the 293rd Engineer Construction Battalion in Germany when he was admitted for epigastric pain (pain below the ribs in the area of the upper abdomen). He was subsequently diagnosed with an ulcer of the duodenum (part of the small intestine immediately after the stomach) and infectious hepatitis (highly contagious liver infection). Both conditions were determined to be in the line of duty. c. DD Form 481-1 (Clinical Record Cover Sheet), dated 17 February 1954, indicated the applicant transferred by air to the Continental United States (CONUS). 6. His reconstructed record does not contain any evidence of disciplinary action under the Uniform Code of Military Justice (UCMJ). 7. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 8. In or around 1981, he applied to the ABCMR requesting an upgrade of his character of service. The Record of Proceedings for ABCMR Docket Number AC81-05821-A, dated 13 April 1983, recorded the following: a. The applicant: * requested his general discharge be changed to fully honorable * stated his less than honorable discharge was based on isolated acts of indiscipline and on overly harsh punishments * identified two instances of minor misconduct, one being absence without leave (AWOL) over a weekend and the second was getting into an argument with an officer; he affirmed he served 30 days in the stockade for his AWOL b. The Board determined: * by his own admission, the applicant accepted nonjudicial punishment under the provisions of Article 15, UCMJ on at least two occasions * one of the resulting punishments was serving in the stockade for 30 days * following medical treatment and hospitalization, he was medically evacuated to CONUS; upon completion of his medical treatment, he was separated with a general discharge under honorable conditions effective 30 April 1954; the reason for separation was ETS * given the applicant was confined for 30 days and that his DD Form 214 reflected 94 days lost, his service did not appear to be sufficiently meritorious for a fully honorable character of service 9. Counsel provides: a. Certification of Military Service showing the applicant was a member of the Regular Army from 8 December 1950 to 30 April 1954, and his service was terminated by general discharge under honorable conditions. His last rank/grade was PFC/E-3. b. Two character reference letters summarized in counsel’s statement. REFERENCES: 1. AR 615-360, in effect at the time, stated because the type of discharge may significantly influence the individual's civilian rights and the eligibility for benefits, it was essential that all pertinent factors be considered. It was the policy of the Army to base evaluation of an individual's service and character on his overall enlistment rather than on disqualifying entries in his service record. a. Regarding an honorable character of service: (1) An Honorable Discharge Certificate was to be furnished when the individual met the following qualifications: * had character ratings of at least "very good'' * had efficiency ratings of at least "excellent" * had not been convicted by a general court-martial * had not been convicted more than once by a special court-martial (2) Notwithstanding the above-cited criteria, when disqualifying entries were outweighed by subsequent honest and faithful service, an honorable discharge could be furnished. b. Concerning a general discharge, individuals discharged under honorable conditions not qualifying them for an honorable discharge were to be furnished a General Discharge Certificate. c. Paragraph 10 (Sub-standard Personnel) stated: (1) A continued effort was required for early detection of individuals who were not suited for military service. The regulation provided a list of references in paragraph 13 (Separation Prior to Expiration of Period of Service) to address such Soldiers (i.e. AR 615-366 (Misconduct) or AR 615-368 (Unfitness)). (2) When the separation was not warranted under the provisions noted in paragraph 13, commanders were to take action to bar Soldiers from reenlistment; this was intended for individuals with records of habitual minor misconduct, and whose character and efficiency ratings merited a general discharge. (3) In such cases, unit commanders were to prepare a certificate summarizing the basis for the action. On approval, a copy of the certificate was placed in the personnel record, along with a remark entered onto the WD AGO Form 24A (Service Record) showing, "Not recommended for further service." Commanders could recommend voiding the certificate, when warranted, but approval had to be granted by the appropriate approval authority. (4) Commanders of separation centers were required to examine service records, and when they found the aforementioned remark, they were to enter the following remark in item 38 of the DD Form 214: "paragraph 11, SR 615-105-1 applies – AR 600-186 (Filing of Adverse Matter in Military Personnel Files) complied with." When the remark had been deleted, the commander effecting separation was to ascertain if the deletion was authorized. If not properly substantiated, the remark in item 38 was to read, "paragraph 11, SR 615-105-1 applies." d. Paragraph 12 stated any enlisted person whose period of service will expire during the course of hospitalization and who is in need of further medical care and hospitalization may, with his consent, be retained in service beyond the expiration of his period of service in order that he may complete hospitalization. 2. Section 6(a) (Soldiers to Make Good Time Lost) of Appendix 2b (The Act of 5 May 1950), Manual for Courts-Martial, 1951, in effect at the time, stated Soldiers were liable, on their return, to serve any period of more than one day for which they: * deserted * were absent without proper authority * confined for more than one day under sentence, or while awaiting trial and disposition of their case (if the trial results in conviction) * through the intemperate use of drugs or alcoholic liquor, or through disease or injury the result of his own misconduct 3. AR 601-210 (Qualifications and Procedures for Processing Applicants for Enlistment and Reenlistment in the Regular Army), dated 16 September 1964, stated in paragraph 9 (Classes Ineligible to Enlist or Reenlist unless Waiver is Granted) that applicants whose DD Form 214 included the notation, "Para. 11, SR 615-405-1 applies" were not to be accepted for enlistment or reenlistment without a waiver first being granted. 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. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The evidence of record shows the applicant enlisted in the Regular Army for a 3-year term. His DD Form 214 indicates he was separated under honorable conditions with a general discharge, based on reaching his ETS. He served 3 years, 1 month, and 19 days of net active creditable service and had 94 days of lost time. 2. Although his reconstructed record is void of any disciplinary action under the UCMJ, he appears to have committed misconduct during his term of active service. * based on admissions he made in his first ABCMR case, it appears he was AWOL from his unit in Germany; as a result, he was confined in the stockade for 30 days * also noted in his first ABCMR case was an apparent instance involving insubordination to an officer * his DD Form 214 shows lost time of 94 days * the remarks section showed he required a waiver for reenlistment, per paragraph 11, SR 615-105-1; AR 615-360 indicated this remark was entered for Soldiers barred from reenlistment due to habitual minor misconduct, and character/efficiency ratings meriting a general discharge 3. Counsel makes several arguments: a. Counsel contends the applicant’s general discharge characterization is in error because the narrative reason for separation on his DD Form 214 indicates ETS rather than a form of misconduct. However, the fact a Soldier reached the end of his contracted term of service did not necessarily result in an automatic honorable discharge. The responsible commander was required to evaluate the Soldier's overall service and character and, based on this assessment, determine the Soldier's character of service. There was no regulatory restriction that mandated a general discharge could only be issued if under the provisions of an adverse separation (i.e., AR 615-366 or AR 615-368). b. Counsel asserts the applicant should be granted an honorable discharge based on his post-service accomplishment and letters of support which affirm he has been an upstanding citizen. While the applicant's accomplishments are quite significant, the characterization of service focuses exclusively on when he was on active duty. Post-service accomplishments and conduct are not normally a basis for upgrading a characterization of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006167 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006167 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2