ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 April 2019 DOCKET NUMBER: AR20170001378 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions discharge * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 9 November 2014 and 9 December 2016 * Case Management Division Memo, 13 January 2015 * Self-Authored Statement * Excerpt DA Form 24 (Service Record) * DA Form 26 (Record of Court Martial Conviction) * Health Records * Special Court-Martial Order Number 35 * Administrative Separation of Enlisted Man Memorandum * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Army Discharge Review Board Memorandum * Character Reference Letters 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 was treated unfairly. He states he missed an alert and was court-martialed. The day prior to the alert he injured his back after jumping from a helicopter exercise. The next day he could not move, was forced to make formation, and was subsequently sent to the dispensary. He was at the dispensary with a bad back injury at the time of the alert. He did not know that he had a herniated disc and was in terrible pain. He was sent back to the unit and was discharged. He was sent to the stockade in Frankfurt, Germany. He did not understand what his discharge meant. He would like his discharge changed to honorable. 3. The applicant provides: a. Excerpt of health records for 1961-1962. * 18 August 1961, referred to eye department * 18 August 1961, [SIC] vision 20/20 * 27 February 1962, history of low back ache * 1 March 1962, back ache and pain over L-4-5 area * 14 March 1962, seen by Division psychiatrist b. Special Court-Martial Order Number 35, dated 24 March 1962 which shows he was convicted of being absent from his place of duty and disobeying a lawful command. c. Administrative Separation of Enlisted Man Memo, dated 18 May 1962 the discharge is directed for unfitness. Orders would state that the AR 635-208 is being returned under the provisions of Army Regulation 635-208 (Personnel Separations – Unfitness – Frequent Incidents of a Discreditable Nature with Civil or Military Authorities) and will be furnished an Undesirable Discharge Certificate (DD Form 258A). d. Army Discharge Review Board Memorandum, dated 20 June 1975 which shows after review he was properly discharged and his request was denied. e. Character reference letter from NR which states she knew him for 19 years. She also states that he is a loving grandfather, generous, friend, sound advisor, and a person that everyone depends on. She states that he was a vital part of her life and her two sons. When she was 21 and pregnant, he ensured that she had a car. While working in the trauma unit at the hospital, she was able to call him in the middle of the night to interpret for an injured patient. She trusted him to assist her with communicating and well-being of the patient. She has also known him to help relatives, friends and strangers when asked. She felt fortunate to have him as a friend and considered him as a second father. f. Character reference letter from XX and XX which states that they knew him for over 30 years. They state that he is very kind, generous and a loving husband, father, grandfather, and friend. He has spent many years contributing to his community by volunteering to help the elderly, coaching baseball, and being a conscientious citizen. If a person is in need, he is the first person to offer what he could. He has a mild mannered personality and places everyone at ease. g. Character reference letter from XX which states he has known him since 1975. He was a hard worker for many years. He also states that he was married, raised a family, always helped out, always smiled, said kind words and was trustworthy. He never knew him to be mean, unkind, selfish or hateful. He is proud to call him his friend. 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 12 September 1960. b. He served in Germany from 14 February 1961 to 4 June 1962. c. He accepted nonjudicial punishment (NJP) on/for: * 2 August 1961, failing to obey an order * 31 October 1961, failing to obey and order * 21 January 1962, failing to obey an order d. On 2 January 1962, he was convicted by a summary court martial for disobeying a lawful order. The court sentenced him to reduction to the grade of private/E-1, performance of hard labor without confinement for 45 days, and forfeiture $25 pay per month for one month. e. On 19 March 1962, he was convicted by a special court martial of one specification of intentionally absenting himself from place of duty to avoid field exercise and one specification of willfully disobeying a lawful order. The court sentenced him to confinement to hard labor for 6 months and forfeiture of pay. The convening authority approved the sentence on 24 March 1962. f. A separation medical examination, dated 28 March 1962 which shows a back injury from 1958 for a football injury. g. On 28 March 1962, the applicant’s immediate commander notified the applicant to appear before a board of officers to determine whether he should be separated from the service under the provision of AR 635-208 for unfitness. h. On 1 May 1962, a board of officers convened to determine if the applicant should be separated. The board of officers found the applicant’s records gave evidence of unfitness within the meaning of paragraph 3, AR 635-208, which rendered retention undesirable. The board of officers recommended his discharge from the service because of undesirable habits and traits of character with an Undesirable Discharge Certificate. i. He was discharged from active duty on 14 June 1963 under the provisions of AR 635-208. His DD Form 214 shows he received a characterization of service of under other than honorable conditions. He completed 1 year, 8 months, and 11 days of active service. 5. By regulation, individuals will be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warrant a general or honorable discharge. 6. In reaching its determination, the Board can consider the applicants’ petition in his service record in accordance with published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted. Based upon the type of misconduct, the Board found that the level of disposition was too harsh which created an injustice. For that reason, the Board recommended upgrading the discharge of the applicant to Honorable. 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. 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) 635-208, in effect at the time, establish policy and provide procedures and guidance for the prompt elimination of enlisted personnel who are determined to be unfit for further military service. Individuals will be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warrant a general or honorable discharge, when it has been determined that an individuals’ military record is characterized by one or more of the following: * Frequent incidents of a discreditable nature with civil or military authorities * Sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with, or assault upon, a child; or other indecent acts or offenses * Drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana * An established pattern for shirking * An established pattern showing dishonorable failure to pay just debts 3. AR 635-200 (Active Duty Enlisted Separations), currently in effect, provides the policy and procedures for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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 (General discharge) states 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. 3. 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) AR20170001378 5 1