ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 April 2019 DOCKET NUMBER: AR20160014177 APPLICANT REQUESTS: Correction of his records to show he received an honorable vice a general (under honorable conditions) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Statement 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 is 83 years of age and asks for an upgrade of his discharge, in the interest of justice, so that he may be eligible to obtain insurance with USAA [United Services Automobile Association]. Additionally, he states: * after basic training he was assigned to Fort Leonard Wood, MO, and he was discharged there * he played football, basketball, and baseball, and worked as a clerk typist in headquarters division; by playing sports he was exempt from duty * his section chief, a warrant officer, disliked him because he got out of work many afternoons to practice before his games * his section chief tried to reduce him in rank by saying he missed formation, but he did not miss formation, he told the colonel and he was not reduced in rank * they had about 15 or 20 people and they signed in when they could * he thought an under honorable conditions discharge was the same as an honorable discharge * he passed the bar examination and practiced law in California for 26 years 3. The applicant’s military records are not available to the Board for review. A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973. It is believed that the applicant’s records were lost or destroyed in that fire. However, the statement that he provided and the DD Form 214 (Report of Separation From the Armed Forces of the United States) in a reconstructed record were sufficient for the Board to conduct a fair and impartial review of this case. 4. Review of the available service records shows: a. The applicant enlisted in the Regular Army (RA) on 16 October 1953 and he served as a clerk typist. b. His DD Form 214 shows he was released from active duty on 15 July 1955 under the provisions of Army Regulation (AR) 635-250 (Personnel Separations –Release to National Guard and Army Reserve) and Section V, SR 615-360 (Discharge; Release from Active Duty), due to expiration term of service and transferred to the Army Reserve to complete his service obligation. His DD Form 214 shows: * he completed 1 year and 9 months of active service * his service was characterized as general, under honorable conditions * he had no recorded lost time * he was awarded or authorized the National Defense Service Medal 5. AR 615-360, in effect at the time, applied to individuals discharged for expiration of service. It is the policy of the Department of the Army to base evaluation of an individual's service and character on the overall enlistment period. 6. AR 635-250 stated each male person inducted or initially enlisted in the RA after 19 June 1951 while under 26 years of age who served on active duty for a period of less than 8 years and who meets current qualifications for reenlistment as a reservist of the Army would be transferred to the Army Reserve to complete their military service obligation. 7. AR 15-185 (Army Board for Correction of Military Records) places the burden on the applicant to provide evidence to support his/her request. The Board proceeds from a presumption that the discharge shown was correct and that no injustice occurred. 8. 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: After reviewing the application and all supporting documents, the Board determined that relief was warranted. Based upon a lack of available documentary evidence within the service record to show the reason for discharge, the Board examined the statement of the applicant and the totality of the known circumstances, to include no recorded lost time in his record, the amount of time since the discharge, and what the applicant did after being discharged (passing the bar), to conclude that upgrading the applicant’s characterization of service should be granted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :x :x :x GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Honorable. SIGNATURE: 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. Army Regulation (AR) 615-360, in effect at the time, set forth the general provisions governing the discharge of enlisted personnel. It applied to individuals discharged for expiration of service. It stated, in effect, that it was the policy of the Department of the Army to base evaluation of an individual's service and character on the overall enlistment period. AR 615-360 also provided that an honorable discharge certificate would be furnished when the individual had character ratings of at least "very good," had efficiency ratings of at least "excellent," had not been convicted by a general court-martial, and had not been convicted more than once by a special court-martial. A general discharge was given to Soldiers who did not qualify for an honorable discharge. 3. AR 635-250 (Personnel Separations –Release to National Guard and Army Reserve) provides administrative procedures for relief from active duty and transfer to the Army Reserve, or release to the Army Reserve or National Guard, of enlisted personnel who have a service obligation under the Universal Military Training and Service Act (UMT&SA), as amended, hereinafter referred to as the UMT&SA, and for release to the Reserve components those members thereof who at time of relief from active duty have no service obligation under the UMT&SA, but who have a current portion of enlistment remaining. 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. 5. 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. ABCMR Record of Proceedings (cont) AR20160014177 5 1