ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 November 2019 DOCKET NUMBER: AR20170008949 APPLICANT REQUESTS: an upgrade of his undesirable discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 would like to upgrade his undesirable discharge to honorable. He states the reason for the undesirable discharge was due to his sexual preference which is not an undesirable discharge. 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. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 4 February 1953. b. He was discharged from the Army on 26 January 1955. His Certification of Military Service show he was furnished an Undesirable Discharge certificate. He active service dates are 4 February 1953 to 26 January 1955. c. His complete record and circumstances surrounding his discharge is unavailable for review. 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, discharge certificates are furnished to enlisted and inducted personnel when they are discharged. The undesirable discharge may or may not deprive the individual of veteran’s benefits administered by the Veterans' Administration and a determination by that agency is required in each individual case to fix the individual's rights. 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 provided by the applicant and found within the military service record, the Board found insufficient evidence to corroborate the statement of the applicant to show that he was discharged as a result of his sexual preferences. Because the burden of proof to show an error or injustice was present is upon the applicant, the Board recommended denying the applicant’s requested 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 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 - Active Duty Enlisted Administrative Separations), provides for the separation of enlisted personnel a. Paragraph 1-13 (Honorable discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and ABCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, ABCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170008949 3 1