ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 October 2019 DOCKET NUMBER: AR20170006576 APPLICANT REQUESTS: reconsideration of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 29 September 1954 be upgraded from general/under honorable conditions to honorable. 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 * Commonwealth of Puerto Rico Negative Certificate of Penal Record FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC82-09488E on17 December 1997. 2. The applicant provides: a. The Commonwealth of Puerto Rico Negative Certificate of Penal Record, dated 29 March 2017 that shows, at the time of the search, the applicant’s name did not appear with a penal record. The search was limited to sentences emitted by the courts of the Commonwealth of Puerto Rico. b. His DD Form 214(Certificate of Release or Discharge from Active Duty) for the period ending 29 September 1954 that shows in: * Item 12a (Date Entered Active Duty this Period) 28 November 1951 * Item 12b (Effective Date of Separation) 29 September 1954 * Item 13 (Decorations, Medals, Badges, Commendations, and Campaign Ribbons Awarded or Authorized) (1) National defense Service Medal (2) Korean Service medal w/ 2 bronze service stars (3) Combat Infantryman Badge (1) (4) United Nations Service Medal (5) Republic of Korea Presidential Unit Citation Badge * Item 18 (Remarks) service characterization upgraded on 4 May 1998 following application of 11 April 1996 / retained in active duty service 151 days for the convenience of the government / General Court-Martial Order (GCMO) #85, Headquarters, U.S. Army Forces Antilles and Military District of Puerto Rico (HQ USARFANT & MDPR) dated 4 December 1953 / GCMO #133 (CM 369485) HQ USARFANT & MDPR dated 20 September 1954 * Item 21 (Signature) his signature applied * Item 23 (Type of separation) Discharge * Item 24 (Character of Service) Under Honorable Conditions (General) * Item 26 (Foreign and/or Sea Service) 11 months, and 14 days * Item 28 (Narrative Reason for Separation) Court-Martial, other 3. The applicant's complete service records are not available for review. A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973. It is believed that the applicant's records were lost or destroyed in that fire. Incorporated herein by reference are the remaining reconstructed service records from a previous consideration of the applicant’s case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC82-09488E on 17 December 1997. a. General Court-Martial Order Number 85, dated 4 December 1953, shows the applicant was arraigned, tried, charged and convicted of: (1) One specification of preparing a “Dependency Certificate-Mother and/or Father” (DD Form 137-1) for presentment to make a claim against the United States at the rate provided by law for basic allowance for quarters for dependents, which was false and fraudulent in the total amount of $1,121.00 for the period from December 1951 through April 1953, in that the persons claimed as dependents were not at the time dependent upon the applicant for support in excess of 50 percent of their living expenses, and was then known by the applicant to be false and fraudulent. (2) One specification for the purpose of obtaining approval and payment of a claim against the United States did, make a certain writing to wit, a “Dependency Certificate – Mother and/or Father” (DD Form 137-1) which the applicant then knew contained statements by him that his claimed dependents (mother and father) had no income other than contributions from him, and that his father was physically unfit to work, which statements were false and fraudulent in that the father was employed, and the monthly income of the mother and father, other than contributions by the applicant, was approximately $118.00 per month, and was known to be false and fraudulent. b. His sentence included forfeiture of $55.00 per month for six months, confined to hard labor for six months, and to be discharged from the service with a bad conduct discharge. The sentence was adjudged on 3 September 1953. a. c. On 4 December 1953, the General Court-Martial authority approved the sentence. The record of trial was forwarded to the Judge Advocate General of the Army for review. Pending completion of the review, the applicant was confined in the Antilles Guardhouse, Fort Buchanan, in Puerto Rico. d. General Court-Martial Order Number 23, dated 2 February 1954, shows the applicant had served the adjudged period of confinement and was restored to duty pending completion of the appellate review. The portion of the sentence adjudging forfeitures did not apply to pay and allowances becoming due during the period commencing on 1 February 1954 and terminating on the date of the order directing the execution of the sentence. e. General Court-Martial Order Number 133, dated 20 September 1954, shows the sentence to the bad conduct discharge, forfeiture of $55.00 per month for six months becoming due on or after the date of the convening authority’s action, and confinement at hard labor for six months was affirmed. The sentence pertaining to confinement has been served. f. His DD Form 214 for the period ending 29 September 1954 that shows his character of service as bad conduct. The form further shows in: * Item 6 (Effective Date of Separation) 29 September 1954 * Item 8 (Reason and Authority for Separation) Sentence of Court Martial * Item 15 (Inducted) 28 November 1951 * Item 18 (Remarks) service characterization upgraded on 4 May 1998 following application of 11 April 1996 * Item 21 (Signature) his signature applied * Item 23 (Type of separation) Discharge * Item 24 (Character of Service) Under Honorable Conditions (General) * Item 26 (Foreign and/or Sea Service) 0 years, 11 months, and 14 days * Item 27 (Decorations, Medals, Badges, Commendations, and Campaign Ribbons Awarded or Authorized) (1) Korean Service medal with 2 bronze service stars (2) Combat Infantryman Badge (3) National Defense Service Medal (4) United Nations Service Medal * Item 38 (Remarks) (1) General Court-Martial Order (GCMO) #85, Headquarters, U.S. Army Forces Antilles and Military District of Puerto Rico (HQ USARFANT & MDPR) dated 4 December 1953 (2) GCMO #133 (CM 369485) HQ USARFANT & MDPR dated 20 September 1954 g. On 17 December 1997, the ABCMR in Docket Number AC82-09488E, determined the applicant’s bad conduct discharge, although accomplished in a. accordance with the regulations in effect at the time of his discharge, was too harsh and that the general discharge was more appropriate. His records were corrected in accordance with their findings, and he was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty reflecting the corrections. He was also provided a General Discharge Certificate. 4. Army Regulation AR 635-200, sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. An Honorable Discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member'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. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance for consideration of discharge upgrade requests, the Board determined relief was not warranted. The Board considered the applicant's statement, his record of service, the beleif his records were lost or burned in the NPRC fire, the reason for his separation and the previous upgrade of his discharge. The Board found the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based preponderance of evidence, and based upon the offenses which resulted in the applicant’s separation being of a criminal nature, the Board concluded there was no evidence of an error or injustice which would warrant further 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. 11/6/2019 X CHAIRPERSON Signed by: 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 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member'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) 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 1. 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