ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 February 2019 DOCKET NUMBER: AR20160012961 APPLICANT REQUESTS: * The applicant requests his undesirable discharge be upgraded to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Three character letters * Printout from Crime Records Services DPS Austin Texas * Printout of driver record information 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 he has carried the burden of shame associated with his undesirable characterization since it happened a long time ago. He does not want to die having the undesirable characterization of service since he knows he served honorably in Korea. He says he got in trouble when he was very young and did not argue with the officers that told him they were going to separate him. He was not given an opportunity to argue. 3. Army Review Boards Agency requested his records, however, it is indicated they are not available. The available evidence is limited to his DD Form 214, which shows: a. On 02 February 1951, have previously served 8 months and 2 days and at the age of 18, the applicant enlisted in the Regular Army for a period of 3 years. b. 24 April 1953, the applicant was discharged under the provisions of Army Regulation 615-368 (Enlisted Personnel, Discharge, Unfitness), his service was characterized as undesirable. He had completed 1 year, 3 months, and 8 days of active service this period with 347 days of lost time under Section 6a, Appendix 2b of the Manual of Courts-Martial dated 1951. c. He served 1 year and 3 months of Foreign Service and authorized or awarded the United Nations Service Medal, the Korean Service Medal with five Bronze Service Stars. 4. Neither the applicant nor his records provides evidence that shows information regarding his initial entry into the Army or the the period he was AWOL. 5. The applicant provides character letters in his applicant packet which speak positively of the applicant’s character. He also included documents that show he has no criminal record on file in Austin, Texas. 6. Based on the available evidence we are unable to determine if he was initially inducted or enlisted for his previous service and immediately discharged for immediate reenlistment and if that service was characterized as honorable. His record does provide his initial entry into the Army he would have been approximately 17 years old. Additionally, only 3 months of his service this period was not in the Korean War. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, two Board members determined there is insufficient evidence to grant relief. One Board member voted to grant relief because the applicant was young at the time of AWOL. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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. ___________X________________ Chairperson 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): Army Regulation 600-8-22 (Military Awards) states a Silver Star is worn instead of five Bronze Service Stars; Based on this amend his DD Form 214 by: * Deleting "Korean Service Medal w/5 Bronze Service Stars;" and * Adding "Korean Service Medal with Silver Star" 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. Section 6a of Appendix 2b of the Manual for Courts - Martial, dated 1951, stated that a Soldier who deserts; is absent from his organization, station, or duty for more than one day without proper authority, as determined by competent authority; is confined by military or civilian authorities for more than one day in connection with a trial, whether before, during, or after the trial; or is unable for more than one day, as determined by competent authority, to perform his duties because of intemperate use of drugs or alcoholic liquor, or because of disease or injury resulting from his misconduct; is liable, after his return to full duty, to serve for a period that, when added to the period that he served before his absence from duty, amounts to the term for which he was enlisted or inducted. 3. Army Regulation 615-368, in effect at the time, set forth the procedures and authority for the separation of enlisted personnel for unfitness. Paragraph 1 of the regulation provided, in pertinent part, that individuals who have demonstrated they were totally unfit for further retention in the military service due to misconduct were subject to separation for unfitness. The regulation provided that the individual's commander would report the facts to the next higher commander and recommend that the individual appear before a board of officers. This board of officers was convened by the commander exercising general court-martial authority jurisdiction. The board of officers could recommend the individual be discharged for unfitness, discharged for unsuitability, or retained in the service. This regulation further provided that when an individual was discharged for unfitness they would be issued an Undesirable Discharge Certificate. 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. ABCMR Record of Proceedings (cont) AR20160012961 5 1