ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  22 May 2019

	DOCKET NUMBER:  AR20170004974


APPLICANT REQUESTS:  an upgrade of his undesirable discharge to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Report of Separation from the Armed Forces of the United States).
* NA Form 13038 (Certification of Military Service)

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 block 7 (Type of Separation) of his DD Form 214 should be amended to read honorable.  He also states his character of service should be amended to prevent complications his spouse may incur when filing for burial benefits.

3.  There was a fire at the National Personnel Records Center (NPRC) on 12 July 1973.  The fire destroyed the major portion of the records of Army military personnel for the period 1912 through 1959.  NPRC believes the applicant’s records were lost or destroyed in that fire.  Fortunately, there are alternative records sources that often contain information, which NPRC uses to reconstruct service record data.  The majority of the applicant's records are not available for review.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.
4.  The applicant’s available service records shows:
	a.  He enlisted in the Regular Army on 20 September 1954.
	b.  He was convicted by special court-martial for larceny on 15 October 1955.  The court sentenced him to 6 months confinement, forfeiture of pay, and reduction from private/E2 to private E1.

	c.  The complete facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, his records contain the following documents:

		(1)  DA Form 1 (Morning Report), shows Special Orders Number 116 issued by Headquarters, 25th Infantry Division, Schofield Barracks, HI, approved his sentence on 5 November 1955.

		(2)  An extract of the Morning Report changing the applicant’s duty status from confined to duty and ordered his discharge under the provisions of Army Regulation (AR) 615-368 (Enlisted Men – Discharge – Unfitness), effective 14 February 1956.

		(3)  A duly-constituted DD Form 214 shows he was discharged on 16 February 1956 under the provisions of AR 615-368 with an Undesirable Discharge Certificate as a private/E1.  His DD Form 214 also shows he completed 1 year, 2 months, and 14 days of creditable active military service.  The applicant also had lost time, however, the entry is not legible on the DD Form 214.

5.  On 21 August 1981, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

6.  By regulation/directive, 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.  An individual separated by reason of unfitness will be furnished an Undesirable Discharge Certificate.

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 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 not warranted.  Based upon the documentary evidence prestned by the applicant and found within the military service record, the Board concluded there was insufficient evidence to show that an error or injustice was present which warranted making a change to the characterization of service in the discharge of the applicant.  The Board found that in addition to a lack of evidence concerning the facts and circumstances surrounding the events which led to the discharge, the Board determined that the applicant failed to provide any character evidence to show that the applicant had learned and grown from those events leading to discharge.  For that reason, the Board recommended denying the applicant’s request for relief.

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 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) 615-368 (Enlisted Men – Discharge - Unfitness), in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness. 

	a.  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. 

	b.  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.  AR 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.

	a.  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.

	b.  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.  AR 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.

ABCMR Record of Proceedings (cont)	AR20170004974


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