ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 July 2019 DOCKET NUMBER: AR20170010630 APPLICANT REQUESTS: an upgrade to his other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement * DD Form 214 (Armed Forces of the United States Report of Transfer or 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 is making this request because when he entered the Army he was only 15 years old and was adopted by some people by the name of Mi__ He had no idea of his proper date of birth, later on he found out something he never knew at the time he went in the Army. He was born X___ X___ X___ on 4 M_ 19XX and 15 years old at that point in time not really knowing any better. He states he was just a boy not knowing any better at that time he had no proof he was born in Baltimore, Maryland John Hopkins Hospital and his father was Co_ Ca_. 3. The applicant provided a self-authored statement explaining how he was raised as X___ X___ X___by X___ X___ and X___ X___ X___ and his biological dads name is X___ X___. His dad had nothing to do with any of the 5 children and he never knew his dad until later in life. He states he doesn’t know how his birth date got messed up. He has not been in any trouble other than he went through a problem with Alcohol but no major problems, no felonies or nothing in that manner. He is 72 years old now and should have done this years ago but doesn’t want nor is he looking for any type of Veterans Benefits just an upgrade of his discharge. 4. A review of the applicant’s service records shows the following: a. He was inducted into the Army of the United States on 17 January 1962. b. On 7 December 1962, court-martial charges were preferred. c. On 12 December 1962, a mental evaluation were conducted. The examiner concurred that there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels. d. On 18 December 1962, he was found guilty and convicted by a special court-martial of: * one specification of being absent without leave from 9 July 1962 to 2 August 1962 * one specification of being absent without leave from 26 August 1962 to 4 September 1962 * one specification of being absent without leave from 16 September 1962 to 26 October 1962 * one specification of being absent without leave from 18 November 1962 to 18 November 1962 * one specification of violating the conditions of parole on 18 November 1962, by leaving his assigned area without proper authority e. The court sentenced him to 6 months of confinement at hard labor and forfeiture of $55 pay per month for 6 months and reduction to the grade of Private E-1. The sentence was adjudged on 20 December 1962 and approved on 28 December 1962. f. On 10 January 1963, the applicant signed a statement of waiver and acknowledged he had been notified by his commander of the pending separation action against him under Army Regulation (AR) 635-208. He declined legal counsel and a hearing before a board of officers. He did not submit a statement on his own behalf and waived the fifteen (15) day notice period for the Board proceedings. g. On 10 January 1963, report of proceeding of the US Army Armor Center Clemency Board recommended suspension of unexecuted portion of sentence to confinement for 3 months. h. On 11 January 1963, his intermediate commander recommended and forwarded the initiated separation action to the separation authority. He recommended that the applicant be discharged under the provisions of AR 635-208 for unfitness and be given an undesirable discharge. i. On 28 January 1963, the commanders approval recommendation for elimination pertaining to the applicant. j. On 28 January 1963, the separation authority accepted the waiver of hearing before a board of officers and approved the discharge under the provisions of paragraph 10, AR 635-208 for unfitness. g. On 29 January 1963, special court-martial order 114 referenced the unexecuted portion of the approved sentence to confinement at hard labor for three months and forfeiture of $55.00 pay per month for three months only was remitted effective the date of his administrative discharge. h. On 15 March 1963, the applicant was discharged from active duty under the provisions of AR 635-208. His DD Form 214 shows he received a characterization of service of under other than honorable conditions. He completed 6 months and 28 days of active service and 214 days of lost time 5. By regulation, individuals will be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warrant a general or honorable discharge. 6. In reaching its determination, the Board can consider the applicants’ petition in his service record in accordance with 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 applicant’s contentions 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. He did not provide evidence of a different DOB than what is on record, character witness statements or evidence of post-service achievements for the Board to consider. Based upon the short term of honorable service completed prior to multiple AWOL offenses, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. AR 635-200 (Active Duty Enlisted Separations), currently in effect, sets forth the basic policy for separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states 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 (General Discharge) states 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. Army Regulation 635-208, in effect at the time, set forth the policy for administrative separation for unfitness. Paragraph 3 provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts. This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or honorable discharge. 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// ABCMR Record of Proceedings (cont) AR20170010630 5 1