ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  11 June 2019

	DOCKET NUMBER:  AR20170010733


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions discharge to an honorable discharge.  He also requests a personal appearance before the Board.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record).
* 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 made a stupid mistake 50 years ago.  He does not understand why he did it, but it is done.  He would like to clean up his record and make it better.  He would like an honorable discharge to get an Identification (I.D) card.

3.  A review of the applicant’s service record shows:

a. He enlisted in the Regular Army (RA) on 24 July 1962.

b. He served in Korea from 14 December 1962 to 9 January 1964.

	c.  On 25 August 1964, he was convicted by special court-martial for one specification of absence without leave (AWOL) from 20 July 1964 to 17 August 1964.  The court sentenced him to confinement at hard labor for six months, forfeiture of $60 pay per month for six months, and reduction to private (PVT)/E-1.  That portion adjudging confinement at hard labor for six months was suspended.  

	d.  On 19 January 1965, he was convicted by special court-martial for one specification of AWOL from 27 November 1964 to 19 January 1965.  The court sentenced him to confinement at hard labor for six months and forfeiture of $75 pay per month for six months.  

	e.  On 26 May 1965, the unexecuted portion of the sentence of forfeiture of $60 pay per month for six months adjudged 25 August 1964 is remitted.

	f.  On 27 May 1965, the unexecuted portion of the sentence of forfeiture of $75 pay per month for six months adjudged 19 January 1965 is remitted.  

	g.  On 4 January 1966, he was convicted by special court-martial for one specification of AWOL from 4 September 1965 to 8 December 1965.  The court sentenced him to reduction to the lowest enlisted grade E-1, confinement at hard labor for six months, and forfeiture of $80 pay per month for six months.  

	h.  On 28 January 1966, his immediate commander notified him of his intent to initiate separation for unfitness under Army Regulation (AR) 635-208 (Personnel Separations – Discharge - Unfitness).

i. He consulted with legal counsel on 28 January 1966 and waived:

* his right to accept counsel
* to have his case heard before a Board of Officers
* to submit statement in his own behalf

	j.  He acknowledged:

* he understood that his separation may be other than honorable
* as a result of the issuance of such a discharge he may be deprived of many or all Army benefits
* he may be deprived of his rights and benefits as a veteran under both Federal and State law
* he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge

	k.  On 28 January 1966, his intermediate commander recommended approval.  He stated the applicant waived his right to a hearing before a Board of Officers.  He was serving an approved six months sentence to confinement at hard labor adjudged on 4 January 1966.  It was recommended that he be eliminated from the service as soon as possible under the provisions of AR 635-208, because of unfitness.  It was further recommended that he be issued an Undesirable Discharge Certificate (DD Form 258a).


	l.  On 1 February 1966, consistent with the chain of command recommendation, the separation approval authority ordered him discharged from the Army under provisions of paragraph 10, AR 635-208.  He would be discharged with an Undesirable Discharge Certificate.

	m.  On 7 February 1966, he was discharged from active duty.  His DD Form 214 (Armed Forces of the United States Report of Separation from Active Duty) shows he was discharged under the provisions of AR 635-208 with an under other than honorable conditions characterization of service, and was issued an Undesirable Discharge Certificate.  He completed 2 years, 9 months, and 11 days of active service with 287 days of lost time.  It also shows he was awarded or authorized Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

	n.  On 23 May 1967, the Army Discharge Review Board determined he was properly discharged.  

4.  By regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  

5.  By regulation, individuals will be discharged by reason of unfitness when it is determined they are unfit for further military service despite reasonable attempts to rehabilitate or rehabilitation is impracticable.  When discharged because of unfitness, DD Form 258a (Undesirable) will be furnished.  

6.  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 review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  Based upon the multiple lengthy AWOL offenses and the lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to his separation, the Board concluded that there was insufficient evidence to show that an error or injustice was present which warranted changing the characterization of service.


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) 635-208 (Personnel Separations – Discharge - Unfitness) in effect at the time, states to reference AR 635-200 (Personnel Separations – General Provisions for Discharge and Release) states that individuals will be discharged by reason of unfitness when it is determined they are unfit for further military service despite reasonable attempts to rehabilitate or rehabilitation is impracticable.  When discharged because of unfitness, DD Form 258a (Undesirable) will be furnished 

3.  AR 635-200, in effect at the time, states:  

	a. Paragraph 9 (Honorable Discharge) states an honorable discharge is a separation from the Army 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 rand or grade held and the capabilities of the individual concerned.  

	b.  Paragraph 10 (General Discharge) states a general discharge is a separation 
from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge

4.  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.  

	a.  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.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

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 the 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, 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 upgrade service characterization.  

ABCMR Record of Proceedings (cont)	 AR20170010733


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