ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  25 June 2019

	DOCKET NUMBER:  AR20170011118


APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-Authored Statement
* FB Form 1429, Record of Lost Time
* Army Discharge Review Board (ADRB) Case Report and Directive
* DD Form 493,  Extract of Military Records of Previous Convictions
* Extract of Separation Packet
* 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 was very immature at the time and he was pressured to accept the discharge.  At the time he was under the impression that he would receive a general discharge.  He was fooled by Captain X___.  He would not have signed the documents in February 1962.  He was on a weekend pass and went to the Washington, DC area.  On his way back he was in a snow storm and could not proceed.  He called Lieutenant X___ and his clerk answered.  He did not know who the clerk spoke to but after he came back on the phone he may have spoken to First Sergeant X___ and said “get back when you can.”  He does not believe that constitutes absent without leave (AWOL).  He was only gone for 3 days, Monday through Wednesday.  Since he believes he had permission, he does not believe the discharge is fair or correct.  He provided a detailed self-authored statement of his military service and events leading up to his discharge (detailed letter enclosed in packet).  

3.  The applicant provides:

	a.  FB Form 1429, Record of Lost Time, dated 25 September 1962, shows:

* AWOL – 4 days, 19-22 February 1962 
* AWOL – 2 days, 10-11 September 1962
* Confinement – 12 September 1962 to current

	b.  DD Form 493, dated 25 September 1962, shows AWOL from 19-22 February 1962.

	c.  Extract of Separation Packet:

* DD Form 458 (Charge Sheet), dated 13 September 1962, 3rd and 4th page only, sentence shows 30 days hard labor with confinement and forfeit $55 per month for 1 month
* Memorandum, dated 2 October 1962, subject: Separation UP Army Regulation (AR) 635-208 (Personnel Separations – Discharge Unfitness) from assistant adjutant general, shows request for discharge as approved 

	d.  ADRB case report and directive, unknown date, shows some illegible hand written notes for overall assessment and legal pre-hearing comments.

4.  A review of the applicant’s service records shows the following:

	a.  He enlisted in the Regular Army on 14 June 1961.

	b.  On 19 March 1962, he was convicted by a special court-martial of one specification of being AWOL from 19 February to 22 February 1962. The court sentenced him to 6 months of confinement at hard labor and forfeiture of $55 pay per month for 6 months.  The convening authority approved the sentence on 20 March 1962.

	c.  On 30 March 1962, he was again convicted by a special court-martial for unlawfully striking Specialist CG in the face with his fist on 24 March 1962. The court sentenced him to 60 days hard labor without confinement, 4 months hard labor with confinement, and forfeit $55 per month for 6 months.  The convening authority approved his sentence on 2 April 1962. 

	d.  On 2 January 1962, he was convicted by a summary court martial for being
AWOL from 10-12 September 1962.  The court sentenced him to 30 days hard labor with confinement, and forfeit $55 for one month.  

	e.  On 6 September 1962, a medical evaluation and on 13 September 1962, a mental evaluation were conducted.  The examiners concurred that there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.

	f.  On 12 September 1962, the applicant acknowledged he had been counseled and advised of the pending separation action against him.  He declined legal counsel and a hearing before a board of officers.  He did not submit a statement on his own behalf.
He acknowledged that:

* he understood that in the event of the issuance of an undesirable discharge, that such discharge will be under conditions other than honorable
* he further understood that, as the result of such discharge, he may be ineligible for many or all benefits as a Veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life

	g.  On 17 September 1962, his immediate commander initiated and forwarded the request for discharge to the intermediate commander.  He recommended that the applicant be required to appear before a board of officers and discharged under the provisions of AR 635-208 for refusal to adjust to military life.

	h.  On 24 September 1962, his intermediate commander recommended and forwarded the initiated separation action to the separation authority.

	i.  On 2 October 1962, the separation authority approved the applicant’s discharge and awarded an undesirable discharge certificate.

	j.  He was discharged from active duty on 10 October 1962 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 1 year, 2 months, and 8 days of active service.

5.  On 28 November 1978, the applicant requested an upgrade through the ADRB and on 28 September 1979, the ADRB determined the applicant was properly discharged.  The request for a change in the character and/or reason of his discharge was denied.

6.  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.

7.  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 there is insufficient evidence to grant relief.  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 character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the record, 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.


ADMINISTRATIVE NOTE(S):

Not Applicable
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, establish policy and provided procedures and guidance for the prompt elimination of enlisted personnel who are determined to be unfit for further military service.  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, when it has been determined that an individuals’ military record is characterized by one or more of the following:

* frequent incidents of a discreditable nature with civil or military authorities
* sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with, or assault upon, a child; or other indecent acts or offenses
* drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana
* an established pattern for shirking
* an established pattern showing dishonorable failure to pay just debts

3.  AR 635-200 (Active Duty Enlisted Separations), currently in effect, provides the policy and procedures for the separation of enlisted personnel.

	a.  Paragraph 3-7a 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 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.

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)	AR20170011118


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