IN THE CASE OF: BOARD DATE: 20 December 2018 DOCKET NUMBER: AR20160015846 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 20 December 2018 DOCKET NUMBER: AR20160015846 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests his undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD) and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his service in Korea. 2. The applicant states he served in Korea but his DD Form 214 does not show this service. At the time of his discharge his wife was having epileptic seizures and he wasn't allowed to take her to the doctor. His taking her to the doctor was the cause for his absences without leave (AWOL). A doctor told him that his wife was going to die if he did not get her back to the doctors that were treating her in Columbus, OH. He was told that if he took this type of discharge it would be changed after 6 months due to hardship. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting documents: * Self-authored statement * DD Form 214 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems: * Orders * Records of nonjudicial punishment under Article 15, Uniform Code of Military Justice * Separation packet * DA Form 20 (Enlisted Qualification Record) * DD Form 214 REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness), then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness. Unfitness included repeated petty offenses/frequent incidents of a discreditable nature with military or civilian authorities, and an established pattern of dishonorable failure to pay just debts. Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. It provides the following: a. An honorable discharge (HD) is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty. b. A GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. c. A UOTHC discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier. (This characterization was under the category UD at the time of the applicant's service.) 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. 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, 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. 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. 5. Army Regulation 600-8-22 (Military Awards) states the Korea Defense Service Medal (created in 2002) is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea. The area of eligibility (1) encompasses all land area of the Republic of Korea and the contiguous water out to 12 nautical miles and (2) all air spaces above the land and water area. The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense. 6. Army Regulation 635-5 (Separation Documents), as then in effect, states a Soldier’s period of foreign and sea service will be entered at item 24c (Foreign and/or Sea Service) with a notation of the location of that service. This information will be taken from the Soldier's DA Form 20. DISCUSSION: 1. While the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 18 January 1963. 3. The applicant's record contains copies of four nonjudicial punishments (NJP) DA Forms 2627 (Summarized Record of Proceedings under Article 15 Uniform Code of Military Justice (UCMJ): * 27 March 1965, for failure to properly maintain his military equipment * 2 August 1965 for one day of AWOL * 26 August 1965, for violation of Post Safety Regulations by returning to the armory a loaded fire arm with a round in the chamber and failure to go to his place of duty on 19 August 1965 * 2 September 1965, for failure to report for extra duty on two occasions 4. The applicant's DA Form 20 (Enlisted Qualification Record) shows: * service in Korea from 24 April 1964 through 9 May 1965 * conduct and efficiency ratings listed primarily as unsatisfactory * award of the Marksman Qualification Badge with Rifle Bar * conviction by a special court-martial for : * AWOL from 28 April 1963 to 3 October 1963 * falsifying a sick slip, absent from his Guard Post, disobeying a lawful command, and AWOL from 4 November 1965 to 3 November 1966 * lost time as: * 28 April - 2 October 1963; 156 days - AWOL (this AWOL ended by civilian authorities) * 1 August 1965; 1 day - AWOL * 4 November 1965 - 3 December 1965; 30 days - AWOL * 6 - 17 December 1965; 12 days - pretrial confinement * 18 December 1965 - 22 February 1966; 67 days - confinement 5. On 18 January 1966, the applicant's unit commander initiated elimination action under Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness) for unfitness. Included in the recommendation documentation were copies of the applicant's court-martials and nonjudicial punishments. 6. On 19 January 1966, the separation authority approved the separation and directed the applicant receive a UD. 7. On 23 February 1966, the applicant was discharged under Army Regulation 635-208, by reason of unfitness. His DD Form 214 shows: * a characterization of service of under conditions other than honorable * 2 years, 4 months and 14 days of active duty service * 267 days of lost time * no foreign or sea service in item 24c 8. The applicant's DA Form 20 shows, at item 31 (Foreign Service), service in Korea from 24 April 1964 through 9 May 1965, 1 year and 16 days. 9. On 26 August 1968, the Army Discharge Review Board denied the applicant's request for an upgrade of his characterization of service. The ADRB noted the applicant had four additional NJPs – failure to go - missing bed check (1964), AWOL (1964), disobeying a lawful order (June 1964), and speeding (May 1965). 10. The applicant's record contains no indication of procedural or other errors that would have jeopardized his rights during the separation process. The separation authority determined the UD was appropriate based on the applicant's overall record, the reason for discharge, and the regulatory guidance in effect at the time. 11. There is no statutory or regulatory provision in place to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. 12. The applicant provides a self-authored statement, wherein he contends he was told that if he signed his discharge paperwork, he could have his discharge upgraded after six months. He thought he was signing paperwork that discharged him for hardship reasons. At the time of his discharge, he just wanted out of the Army; his wife was having their first child and he needed to get back to be with her. He contends he had no choice in doing what he did. 13. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 7. The applicant's DD Form 214 does not show his one year and 16 days of foreign service in the Republic of Korea. He also met the criteria for the Korea Defense Service Medal, which has not been added to his DD Form 214. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005706 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160015846 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2