ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: . BOARD DATE: 30 October 2019 DOCKET NUMBER: AR20170004260 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to a general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 (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 he is in need of medical help. He has heart issues and chronic obstructive pulmonary disease (COPD) and he also needs death benefits. 3. A review of the applicant’s service record shows: a. He was inducted into the Regular Army (RA) on 6 July 1960. b. He served in Germany from 15 November 1960 to 9 January 1962. c. Court-martial charges were preferred against him on 12 June 1961. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of leaving his post before he was regularly relieved on or about 9 June 1961. d. He was convicted by summary court-martial order number 18, on 15 June 1961, for leaving his post before he was regularly relieved on or about 9 June 1961. His punishment consisted of restriction to the limits of his company area for a period of thirty days. The sentence was approved and ordered executed on 15 June 1961. e. Court-martial charges were preferred against him on 3 July 1961. His DD Form 458 indicates he was charged with one specification of breaking restriction on or about 30 June 1961. f. He was convicted by summary court-martial order number 21 on 10 July 1961, for breaking restriction on or about 30 June 1961. His punishment consisted of reduction to PV2/E-2, to be restricted to the limits of his company area for a period of sixty days and to forfeit $40.00. The sentence was approved and ordered executed on 10 July 1961. g. He was convicted by special court-martial number 11, on 22 September 1961, for using disrespectful language and also using words to the effect in an insolent, impertinent and rude manner towards a non-commissioned officer on or about 8 September 1961. His punishment consisted of reduction to PVT/E-1, confinement to hard labor for 3 months and forfeit $55.00 for 3 months. The sentence was adjudged and approved on 22 September 1961. h. On 3 November 1961, the applicant’s immediate commander initiated action to separate him under the provisions of Army Regulation (AR) 635-208 (Personnel Separations), in effect at the time for unfitness, due to constant counseling by his immediate supervisor and officers in the unit. i. On 1 November 1961, the applicant was advised by counsel of the basis for the separation and he requested his case to be heard by a board of officers. j. On 24 November 1961, the board met, and recommended the applicant be eliminated from military service under the provisions of AR 635-208. k. On 13 December 1961, the separation authority approved the findings and recommendations of the board of officers under the provisions of AR 635-208. He would be furnished an Undesirable Discharge Certificate. l. He was discharged from active duty on 18 January 1962 in accordance with AR 635-208 (Personnel Separations – Discharge Unfitness) with an under other than honorable conditions characterization of service for unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities. His DD Form 214 shows he completed 1 year, 3 months and 24 days of net service with 80 days of lost time. 4. There is no evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within the board’s 15 year statute of limitations. 5. By regulation (AR 635-208), provides that individuals would be discharged by reason of unfitness when their records were characterized by one or more frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge. 6. The Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the pattern of misconduct, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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 for correction of the records of the individual concerned. 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 635-208, then in effect, set forth the policy for administrative separation for unfitness. Paragraph 3 of the regulation provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts. This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge. 3. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel a. Paragraph -9a (Honorable Discharge) states an honorable discharge is a separation from the Army with honor. The issuance of an honorable discharge is conditioned upon proper military behavior and proficient and industrious performance of duty, giving due regard to the rank or grade held and the capabilities of the individual concerned. b. Paragraph 10a (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficient meritorious to warrant an honorable discharge. c. Paragraph-11a (Undesirable Discharge) states an undesirable discharge is an administrative separation from the service under conditions other than honorable. It is issued for unfitness, misconduct, or for security reasons. d. AR 635-208, provides that individuals would be discharged by reason of unfitness when their records were characterized by one or more frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or 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 (BCMNRs) 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 court-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 on the basis of 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. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170004260 4 1