ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 September 2019 DOCKET NUMBER: AR20170007120 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to an honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Applicant for Review of 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 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 never had been in trouble while he served in the Army. There was a mistake during his discharge process and would request for it to be corrected. He is requesting to have his characterization of discharge changed to honorable, as it is supposed to be. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army (RA) on 4 November 1958. b. He served in Germany for the period of 15 May 1959 to 4 June 1961. c. Special Order Number 23 dated 1 February 1960, reduced the applicant in rank for private first class (PFC)/E-3 to private (PV2)/E-2 for misconduct with a date of rank (DOR) of 1 February 1960. d. DA Form 458 (Charge Sheet) dated 23 September 1960, showed that the applicant was charged with one specification of without proper authority absented himself from his appointed place of duty which was referred to summary court martial on 23 September 1960 when the applicant elected to refuse punishment under Article 15. The applicant was found guilty and sentenced to forfeiture of $62 per month for 1 month and reduction to the grade of PV2/E-2. The convening authority approved the sentence of forfeiture of $30 per month for 1 month and reduction to PV2/E-2 and ordered it executed on 28 September 1960. e. He was discharged from active duty on 17 July 1961 with an honorable characterization of service under the provisions of Army Regulation (AR) 635-205 (Discharge and Release Convenience of the Government) for convenience of the government. His DD Form 214 show that he completed 2 years, 8 months, and 13 days of active service. f. He reenlisted in the RA on 18 July 1961. g. On 6 November 1961, the applicant accepted non-judicial punishment for one specification of absent without leave (AWOL), his punishment included reduction to the grade of PV2/E-2. h. On 8 January 1962, the applicant accepted non-judicial punishment for one specification of AWOL, his punishment included 14 days restriction. i. DA Form 458 dated 11 January 1962, the applicant was charged with one specification of breaking restriction which was referred to a summary court martial on 12 January 1962. The applicant was found guilty and sentence to forfeiture of $70. The convening authority approved the sentence and ordered it executed on 15 January 1962. j. On 27 January 1962, the applicant accepted non-judicial punishment for one specification of AWOL and one specification of unclean accommodations, his punishment included 14 days extra duty. k. Summary Court Martial Order Number 7 dated 27 April 1962, found the applicant guilty of one specification of without proper authority absented himself from his place of duty, and two specifications of theft. He was sentenced to 6 months confinement at hard labor, forfeiture of $70 per month for 6 months and reduction to the grade of private (PV1)/E-1. The sentence was adjudged and approved and duly executed on 27 April 1962. l. On 8 June 1962, the applicant’s unit commander initiated separation under provisions of AR 635-208 (Personnel Separations –Discharge Unfitness), for AWOL, breaking restriction and larceny. * Three Article 15s * Summary Court Martial * Special Court Martial m. On 2 July 1962, the applicant’s unit commander stated that the applicant had established a pattern of misconduct which he had no desire nor could be rehabilitated. His acts of misconduct continued even after punishment. n. On 3 July 1962, at statement of conduct and efficiency showed the applicant’s conduct and efficiency had been unsatisfactory while confined which was evidenced by the fact that he was reduced from minimum custody to medium custody for disrespect and refusing an order. o. On 9 July 1962, the applicant acknowledged the intent of separation for unfitness under the provisions of AR 635-208: * waived his rights * did not desire counsel * did not desire to submit statements in his own behalf p. On 12 July 1962, the applicant’s battalion commander recommended separation under provisions of AR 635-208 and an undesirable discharge. q. On 17 July 1962, the applicant’s commander clarified that the discrepancies in his history of misconduct was from his previous enlistment which was not available in his service records. r. On 26 July 1962, the separation authority approved the discharge of the applicant under provisions of AR 635-208 and that he be issued an undesirable discharge. s. He was discharged from active duty on 6 August 1962 in the grade of PV1/E-1 with an under other than honorable conditions discharge under the provisions of AR 635-208. His DD Form 214 shows that he completed 3 years, 5 months, and 17 days of active service with 107 lost days. 4. There is no evidence the applicant has applied to the Army Discharge Review Board (ADRB) for review of his discharge within that board's 15-year statute of limitations. 5. By regulation 635-208, states the prompt elimination of enlisted personnel who are determined to be unfit for further military service. Despite reasonable attempts to rehabilitate or develop the individual as a satisfactory Soldier, further effort is unlikely to succeed, rehabilitation is impracticable as in cases when personal history records indicate that the individual is not amenable to rehabilitation measures. Individuals will be discharged by reason of unfitness with an undesirable discharge. 6. 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 not warranted. The Board applied Department of Defense standards for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board considered the applicant’s contentions, his record of service, his honorable discharge, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant did not provide character witness statements or evidence of post-service achievements for the Board to consider in support of a clemency determination. Based on a preponderance of evidence, to include a statement from the applicant, the Board determined that the applicant's discharge characterization was warranted as a result of the misconduct; there was no evidence of an error or injustice. 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. 7 November 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 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) 635-208 (Personnel Separations –Discharge Unfitness), in effect at the time, the prompt elimination of enlisted personnel who are determined to be unfit for further military service. Despite reasonable attempts to rehabilitate or develop the individual as a satisfactory Soldier, further effort is unlikely to succeed, rehabilitation is impracticable as in cases when personal history records indicate that the individual is not amenable to rehabilitation measures. Individuals will be discharged by reason of unfitness with an undesirable discharge. When an individual is to be discharged as unfit with an undesirable discharge, the convening authority will direct his immediate reduction to the lowest enlisted grade. When discharged because of unfitness an undesirable discharge certificate will be furnished. 3. AR 635-200 (Personnel Separations – General Provision for Discharge and Release), in effect at the time, provides for discharge of enlisted personnel upon expiration of term of enlistment and set forth the general provisions governing the release from active duty of enlisted and inducted persons prior to expiration of their terms of service, set forth criteria governing the issuance of honorable and general discharge certificates and provide reference to all other regulations pertaining to the discharge or release from active duty of persons enlisted, inducted, or ordered to active duty. a. Paragraph 9 (Honorable Discharge) states an honorable discharge is a separation 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. An honorable discharge will be furnished when the individual meets the following: * has conduct rating of at least good * has efficiency ratings of at least fair * has not been convicted by a general court martial * has not been convicted more than once by a special court martial b. Paragraph 10 (General Discharge) states a general may be issued if an individual has been convicted of an offense by general court martial or has been convicted by more than one special court martial in the current enlistment period or obligated service or any extensions thereof. The decision is discretionary and if there is evidence that the individual’s military behavior had been proper over a reasonable period of time subsequent to the conviction(s) 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 (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//