ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 October 2019 DOCKET NUMBER: AR20170004484 APPLICANT REQUESTS: an upgrade of his undesirable discharge to under honorable conditions (general) discharge or honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Four Letters of Support * Letter from Department of the Army dated 3 January 1977 * VA Form 21-4138 (Statement in Support of Claim) 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 requesting his undesirable discharge be upgraded to under honorable conditions or honorable. At that time in his life he was immature and unable to adjust to military life after successfully completing Jump School and the Fireman’s Course at Fort Bragg, NC. His personal statement from 1976 states: a. He was employed as a truck driver for the National Tea Company for 9 years and was forced to seek other employment when the company was phased out of the Chicago area. b. He was then employed with Dohrn Transfer Company and was on probation with one of the requirements being he have his discharge upgraded. He believed it would impact the security and welfare of his family and it would create a hardship if his application was denied. 3. The applicant provides: a. Four letters of support: * X____of National wrote on 29 October 1976 that the applicant had been employed with the company since 18 October 1967 and had sown good work habits. Due to the company being phased out of Chicago, he would be terminated, but it was not a reflection of his performance. * On 15 November 1976, X____stated he was his brother-in-law and during the time he had known the applicant he had proven to be dependable, loyal, and responsible, as confirmed with his employment. He was a good provider to his family, but had been laid off by National. He confirmed the applicant had received employment with Dohrn Transfer Company with the stipulation that his discharge be upgrade to general. * His wife, X____, wrote a statement on his behalf dated 16 November 1976. She reiterated he was a good husband, a good father, and had worked tirelessly to provide his family with security. They lost that security when National was phased out of Chicago, but they needed her husband to get an upgrade with the new company. She believed he had proven himself and should not be penalized for something that happened 27 years ago. * Mr. and Mrs. X____, his mother and father-in-law, stated the applicant had been married to their daughter for 15 years. He was described as a good husband and father, a hard worker, and good provider. They also requested an upgrade that would be beneficial for his family. b. A letter written to the applicant from Department of the Army (DA), Office of the Adjutant General, dated 3 January 1977, indicated the request for a review of his discharge should have been sent to the Army Board for Correction of Military Records (ABCMR) and was returned with the appropriate form enclosed to allow him to resubmit to the ABCMR. c. A statement in support of his claim from X____of the Department of Veterans Affairs (VA), Adams County Veterans Officer, which stated: * The applicant submitted his application for an upgrade in 1976 through County Veterans Service Officer in Illinois and it was sent to the Department of the Army. * The letter written by DA confirmed their error in sending it to the wrong office instead of the ABCMR. * The applicant returned to the County Veterans Office with the letter and although the letter was filed, they failed to follow up by sending it to the ABCMR. * He came into the Adams County Veterans Office on 3 September 2016 to get assistance with VA healthcare and it was then they discovered his application had not been processed. * X____asks that the application be reviewed since it was not by his own fault that it had not been processed earlier. 4. The applicant's complete 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 veteran's records were lost or destroyed in that fire; however, there were sufficient documents provided by the applicant for the Board to conduct a fair and impartial review of this case. a. He enlisted in the Regular Army on 6 April 1948. b. He completed the Basic Airborne Course in Fort Benning, GA on 27 August 1948. c. On 4 December 1948, he completed the Fireman’s Course at Fort Bragg, NC. d. The complete facts and circumstances surrounding his discharge are not available for review with this case. However, his WD AGO Form 53-59 (Enlisted Record and Report of Separation – Undesirable Discharge) shows he was discharged on 24 October 1949 under the provisions of Army Regulation (AR) 615- 368 (Enlisted Men – Discharge – Unfitness (Undesirable Habits or Traits of Character)). This form also shows: * he completed 1 year, 4 months, and 24 days of active service * 55 days of lost time under the Articles of War * he held the rank of private 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 6. By regulation (AR 615-368), individuals who had demonstrated their unfitness by giving evidence of habits and traits of character manifested by misconduct could be recommended for discharge. Unfitness included habits and traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, or misconduct. An undesirable discharge was normally considered appropriate. 7. 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 review of the application and all evidence, the Board determined relief is warranted. The applicant’s contentions and letters of support 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. The applicant accepts responsibility for his actions and was remorseful with his application, demonstrating he understands his actions were not that of all Soldiers. The Board agreed an Under Honorable Conditions (General) character of service is warranted, as he did not meet the standards of acceptable conduct and performance of duty for Army personnel making him suitable for an Honorable characterization. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X 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 him a DD Form 214 for the period ending 24 October 1949 showing his character of service as Under Honorable Conditions (General). 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 (AR) 615-368 (Enlisted Men – Discharge – Unfitness (Undesirable Habits or Traits of Character)), in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness. This regulation provided for the discharge of individuals who had demonstrated their unfitness by giving evidence of habits and traits of character manifested by misconduct. Unfitness included habits and traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, or misconduct. An undesirable discharge was normally considered appropriate. 3. Army Regulation 615-368 also stated that a board of officers would recommend that the individual either be discharged because of unfitness or unsuitability, or retained in the service. The regulation stated that discharge, if recommended, would be for unfitness, except that discharge because of unsuitability (under AR 615-369 (Enlisted Personnel – Discharge – Inaptitude or Unsuitability)) 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 warranted. 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 distinguished himself by an act of heroism during his current period of service which in itself reflected great credit on the individual and the military service. 4. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, governs the separation of enlisted personnel. a. Paragraph 3-7a provides that 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 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. 5. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170004484 5 1