ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 June 2019 DOCKET NUMBER: AR20170011447 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) * DD Form 214 (Report of Separation from the Armed Forces of the United States), U.S. Marine Corps (USMC), for the period ending 31 March 1952 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 25 October 1957 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's military records are not available to the Board for review. A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973. It is believed his records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case. This case is being considered using reconstructed records, which primarily consist of a DD Form 214. 3. The applicant states that he enlisted and served in the USMC from 1 June 1952 to 31 March 1952 and fought in the Korean War. He was discharged from the USMC with an honorable discharge. He states he enlisted in the Army in July of 1954 and was stationed at Fort Meade. He did not like his assignment there and requested a transfer several times, but was denied. He felt continuously harassed and berated by higher ranking personnel and he felt that he could not do anything about it, so he went absent without leave (AWOL). He states he realizes that it was wrong, but he felt he had no choice at the time. 4. A review of the applicant’s service records shows: a. Having prior service in the USMC, the applicant enlisted in the Regular Army on 28 July 1954. b. Special Court-Martial Order Number 878, dated 11 December 1956 convicted the applicant of being AWOL from 1 August 1956 to 31 October 1956. His sentence included confinement at hard labor for 6 months and forfeiture of $35 pay per month for 6 months. c. Special Court-Martial Order Number 572, dated 17 October 1957 convicted the applicant of being AWOL from 17 June 1957 to 16 September 1957. His sentence included confinement at hard labor for 6 months and forfeiture of $35 pay per month for 6 months. d. The applicant was notified to appear before a board of officers to determine whether he was going to be eliminated from the service under the provisions Army Regulation 635-208 (AR) (Personnel Separations – Discharge – Unfitness and Unsuitability). e. On 18 October 1957, the board found that evidence of undesirability within the meaning of paragraph 1c of AR 635-208. The board recommended discharge from the service because of undesirable habits or traits of character and that an Undesirable Discharge Certificate be furnished. The board remarked there was evidence of undesirability because of habitual shirker. f. The applicant was discharged from active duty on 25 October 1957 with an under other than honorable conditions characterization of service. His DD Form 214 shows he completed 2 years, 4 months, and 26 days of active service with 306 days lost. 5. On 21 June 1982, the Army Discharge Review Board determined that he was properly discharged and denied his discharge upgrade request. 6. By regulation, action will be taken to separate a Soldier when it is clearly established that despite reasonable attempts to rehabilitate or develop the individual as a satisfactory Soldier, further effort is unlikely to succeed or rehabilitation is impracticable. 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 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, 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 discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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 635-208 (Personnel Separations – Discharge – Unfitness and Unsuitability) sets forth the basic authority for separation of enlisted personnel for unfitness. Action will be taken to separate a Soldier when it is clearly established that despite reasonable attempts to rehabilitate or develop the individual as a satisfactory Soldier, further effort is unlikely to succeed or rehabilitation is impracticable. 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. 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 (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. ABCMR Record of Proceedings (cont) AR20170011447 3 1