ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    11 April 2019

	DOCKET NUMBER:  AR20160016163


APPLICANT REQUESTS:  His undesirable discharge be upgraded to a general discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 10 September 2016
* National Archives (NA) Form 13039 (Response to Request for Separation Documents/Information), dated 15 July 1993
* NA Form 13038 (Certification of Military Service), dated 3 May 2015
* a self-authored letter to the Army Board for Correction of Military Records (ABCMR), dated 1 September 2016

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the ABCMR 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 getting older and has started making his final funeral arrangements.  He recently found out that he will not be able to receive a U.S. Flag and Military Funeral Honors due to his undesirable discharge.  He is trying to get his discharge upgraded simply because he would like to have a funeral with the Flag and Military Honors.  He will be laid to rest in a private family cemetery and will not be needing a veteran's cemetery.

	b.  It has been over 65 years and he never realized that he received an undesirable discharge because when he tried to get his military records, the National Archives replied that they were attempting to reconstruct his records.  He does not recall what or if he did anything to receive the type of discharge he received; however, if he did anything he is deeply sorry for his actions.
	c.  He is 85 years old and his memory is not as good as it was in his younger days.  His health his rapidly deteriorating from his many conditions.  What he recalls is that his father got sick and he could not work to provide for his mother and younger brother.  His mother pressured him into going home to help support his parents and his younger brother.  

	d.  He does not believe he should have received an undesirable discharge.  He has never received any type of benefits from the Department of Veterans Affairs (VA) and he is not trying to get his discharge upgraded for any service-connected disabilities for himself.  

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, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  

4.  The applicant enlisted in the Regular Army on 8 November 1948.

5.  The facts and circumstances surrounding the applicant's discharge are not available for review in this case.  However, his record contains a barely legible Morning Report, dated 14 July 1949, which shows he was released from duty and returned to quarters pending an undesirable discharge under the provisions of Army Regulation 615-368 (Undesirable Habits or Traits of Character) or Army Regulation 615-369 (Discharge – Inaptitude or Unsuitability).

6.  The applicant’s Certification of Military Service shows he was discharged on 14 July 1949, in pay grade E-1, and he received an undesirable discharge.

7.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness.  

8.  Army Regulation 615-369, in effect at the time, set forth the basic authority for the separation of enlisted personnel for inaptitude or unsuitability.

9.  The Board should consider the applicant's personal statement in accordance with the published equity, injustice, or clemency determination guidance.


BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief was warranted.  Based upon the limited amount of documents available, as well as the passage of time since the discharge, the Board concluded that providing clemency to the applicant by upgrading the discharge characterization of service was appropriate.  For that reason, the Board recommended upgrading the characterization of service to under honorable conditions (general).  

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 general, under honorable conditions.
	 
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 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 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided, in pertinent part, for the separation of personnel for the following reasons:  (1) gives evidence of habits or traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, or misconduct; (2) unclean habits; (3) repeatedly committed petty offenses not warranting trial by court-martial; (4) habitual shirker; or (5) recommended for discharge by a board of medical examiners, not because of a physical or mental disability, but because he possessed a psychopathic (antisocial) personality disorder or defect, or was classified as having “no disease” by the board, and his record of service revealed frequent disciplinary actions because of infractions of regulations and commission of offenses, and/or it is clearly evident his complaints were unfounded and were made with the intent of avoiding service.  The regulation also provided that when discharged because of unfitness an undesirable discharge will be furnished.   

3.  Army Regulation 615-368, also stated, in pertinent part, that a board of officers would recommend that the individual be either discharged because of unfitness, unsuitability, or retained in the service.  The regulation stated that discharge, if recommended, would be for unfitness, except that discharge because of unsuitability (under Army Regulation 615-369, without referral to another board) might be recommended in borderline cases if military circumstances and the character of service rendered by the individual during his current period of service so warrant.  As examples, such circumstances would apply where the cause of unfitness had been minor, relative to the length of efficient service or where there had been a definite effort at self control, or where an individual had, during his current period of service, distinguished himself by an act of heroism, which in itself reflected great credit on the individual and the military service.  

4.  Army Regulation 615-369, in effect at the time, set forth the basic authority for the separation of enlisted personnel for inaptitude or unsuitability.  The regulation also provided that discharge for unsuitability would be effected when it was determined that an individual had demonstrated maladaptability for further military service for the following reasons:  (1) character and behavior disorder; (2) mental deficiency; and (3) enuresis.  The regulation also provided that when discharged because of inaptitude or unsuitability a general discharge would be furnished.

5.  Army Regulation 635-200, currently in effect, sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.  

	a.  Paragraph 3-7a provides that 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.  Paragraph 3-7b provides that 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.

6.  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.



ABCMR Record of Proceedings (cont)	 AR20160016163


4


1