ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 June 2019 DOCKET NUMBER: AR20170004250 APPLICANT REQUESTS: reconsideration of his later father's, a former service member (FSM), request for an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) * FSM’s death certificate FACTS: 1. The Record of Proceedings pertaining to the FSM's previous request is not available for review. The official record contains a memorandum, dated 15 October 1975, wherein the Army Board for Correction of Military Records (ABCMR) determined that insufficient evidence had been presented to indicate probable material error or injustice and denied the FSM’s petition for an upgrade of his discharge. 2. The applicant states he received a DD Form 214 showing an honorable discharge on the day of his father’s funeral (13 January 2015). He later received a fax at the funeral home of his father’s DD Form 214 showing an under other than honorable conditions discharge. Therefore, he had to pay for his father’s funeral. 3. The applicant provides his father’s: * two DD Forms 214 for the periods ending on 23 August 1965 and 1 April 1967 * death certificate showing his father died on 2 January 2015 4. Review of the FSM’s military record shows: a. The FSM was inducted into the Army of the United States on 25 August 1964. b. On 10 May 1965, he submitted a request for separation from the service. He stated at the time of his induction, he was married and had one child. Since, he did not have his marriage certificate and child’s birth certificate, they did not believe him and stated he could have it straightened out at his next station. He attempted to make a go of the Army, but due to the requirements of his family, including a second child born on 30 October 1964, he found that he did not earn enough to support his family. Therefore, since he was erroneously inducted into the Army at a time when fathers were not supposed to be drafted, he requested to be separated from the service. c. On 11 May 1965, the FSM’s immediate commander recommended approval of his request. d. On 14 June 1965, the Director, Personnel and Training, returned the FSM’s request for separation as not favorably considered in view of the statement from the National Headquarters, Selective Service System (SSS). He stated that a review of the registrant’s selective service file by that Headquarters revealed that the FSM was inducted into the armed forces on 24 August 1964, as a result of having executed a SSS Form 254 (Application for Voluntary Induction) on 26 June 1964. There was no evidence in the registrant’s file that he was married or had a child or children. The FSM was not denied any of his rights under the Universal Military Training and Service Act, as amended, and he was not erroneously delivered for induction. On the same date, the FSM was notified of action taken and the notification was returned for inclusion in his official military records. e. The FSM was honorably discharged on 23 August 1965, for the purpose of his immediate enlistment in the Regular Army. His DD Form 214 shows he was honorably discharged in accordance with Army Regulation 635-205 (Personnel Separations – Discharge – Release for the Convenience of the Government) with an SPN code "313" (Convenience of the Government). He completed 1 year of active service. f. He enlisted in the Regular Army on 24 August 1965. g. On 4 February 1966, he was convicted by a summary court-martial of three specifications of willfully disobeying a lawful order from his superior noncommissioned officer (NCO) and one specification of being disrespectful in language toward his superior NCO. On 10 February 1966, the convening authority disapproved the findings of guilty and the sentence. h. He was promoted to pay grade E-4 on 16 June 1966. i. On 25 July 1966, he received a Letter of Reprimand for the extremely poor manner in which he had chosen to conduct his personal affairs. The reprimand stated not only did bad debts dishonor him as an individual, but they also reflected adversely on the military as a whole. It was requested his future commander take action to deny him any credit whatsoever on military installations and with commercial firms. j. He arrived in Vietnam on 22 August 1966. He was assigned to Headquarters and Headquarters Company, 1st Battalion, 69th Armor. k. On 6 October 1966, he requested 30 days compassionate leave for the purpose of relocating his wife and three children prior to his departure from his last duty station. On 10 October 1966, his request was disapproved as it did not meet the compassionate conditions required for approval of ordinary leave for compassionate reasons. l. On 19 October 1966, he was convicted by a special court-martial of one specification of willfully disobeying a lawful order from his superior NCO. His sentence consisted of a reduction to pay grade E-3 and a forfeiture of $50.00 pay per month for 2 months. On 25 October 1966, the convening authority approved the sentence, suspended the portion of sentence adjudging forfeiture, and ordered it duly executed. m. On 2 March 1967, he was convicted by a summary court-martial of one specification of willfully disobeying a lawful order from his superior commissioned officer. His sentence consisted of a reduction to pay grade E-1, a forfeiture of $50.00 pay for 1 month, and confinement with hard labor for 30 days. On 4 March 1967, the convening authority approved the sentence and ordered it duly executed. n. On 18 March 1967, he accepted nonjudicial punishment for disobeying a lawful order from his superior commissioned officer. o. The complete facts and circumstances surrounding the FSM’s discharge are not available for review by the Board. However, his available record contains the following: (1) Recommendation for Personnel Separation Under the Provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) memorandum, dated 28 March 1967, wherein the separation authority directed the FSM’s discharge, by reason of unfitness, and reduction to the lowest enlisted grade. (2) DD Form 214 showing he was discharged on 1 April 1967. The form shows he completed 1 year, 7 months, and 8 days of net active service. His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate. He was assigned Separation Program Number 386 (unfitness - established pattern of shirking). The form shows he was awarded or authorized the: * National Defense Service Medal * Sharpshooter Marksman Marksmanship Qualification Badge with Carbine Bar * Vietnam Service Medal * Vietnam Campaign Medal * Expert Marksmanship Qualification Badge with Rifle Bar (M-14) 5. On 29 September 1969, the Army Discharge Review Board determined the FSM was properly discharged and denied his petition for a change in the type and nature of his discharge. 6. By regulation (AR 635-212), action will be taken to separate an individual for unfitness when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort is unlikely to succeed. 7. By regulation (AR 635-5-1), SPN Code 386 was the appropriate code to assign Soldiers separated because of unfitness (established pattern of shirking). 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 found the relief was not warranted. The applicant’s contentions were carefully considered. The FSM was discharge with an UOTHC discharge resulting from misconduct. The Board agreed the discharge characterization was warranted as a result of the misconduct. The Board does not consider the benefits provided to applicants when determining the merits of a case. Furthermore, the applicant is advised to contact a local casualty area command to obtain information on funeral assistance for former service members. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X 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 to amend the decision provided on the ABCMR notification letter, dated 15 October 1975. 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. Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), in effect at the time, established policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record. Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed: inaptitude; character and behavior disorders; apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); alcoholism; or enuresis. 2. AR 635-200 applied to separation for unfitness and unsuitability. It provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 3. AR 635-200 (Active Duty Enlisted Separations), currently in effect, sets forth the basic policy for 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. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. 5. AR 635-5 (Separation Documents) provides guidance for the preparation of the DD Form 214. On 1 October 19779, the Army discontinued the issuance of a separate DD Form 214 for each period of induction, enlistment, or reenlistment. 6. AR 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN (now known as SPD) to be entered on the DD Form214. The regulation stated the SPN386 was the appropriate code to assign Soldiers separated because of unfitness (established pattern of shirking). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170004250 5 1