ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 July 2019 DOCKET NUMBER: AR20170012500 APPLICANT REQUESTS: an upgrade of his bad conduct 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 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 that he had completed 90% of his Army obligation. He feels that he should have been given a little consideration by his officers. He had lost his mother and his five brothers and sisters were home alone. That’s why he wanted to go home and take care of them. He was the oldest of the family. He went home to take care of his siblings, but he did not know what else to do. An uncle just found out that he had a bad discharge 58 years later and he is trying to see if he could help him correct the bad discharge. 3. A review of the applicant’s service record shows the following: a. DD Form 113 (Military Pay Record) shows the following enlistment dates: * 20 January 1954 * 8 September 1955 * 5 October 1957. b. FC USA Form-1338 (Leave Ledger), shows that the applicant accrued from the period of 20 January 1954 to 5 December 1958 a total of 147 days. It also shows that from the period of 20 January 1954 to 5 December 1958 that he used 136 days. It also shows that the applicant had 16.5 days of lost leave. a. c. Special Orders, dated 3 December 1958, shows that the applicant was discharged not by reason of physical disability with an effective date of 5 December 1958. It also shows that the applicant was to be issued a DD Form 214 (Report of Separation from the Armed Forces of the United States) with an [undesirable discharge]. d. NA Form (Certificate of Military Service), dated 14 July 2017, shows that the applicant served honorably from 20 January 1954 to 4 October 1957 and received an honorable discharge. e. NA Form (Certificate of Military Service), dated 14 July 2017, shows that the applicant served from 5 October 1957 to 5 December 1958 and received an under other than honorable conditions discharge. f. Department of Health and Human Services Form Certification by Uniformed Services, dated 17 July 1997 shows the following enlistment dates and discharge dates: * he enlisted in the Regular Army (RA) 20 January 1954 with a discharge date of 7 September 1955 with a honorable discharge * he enlisted in the RA on 8 September 1955 with a discharge date of 5 October 1957 with an honorable discharge * he enlisted in the RA on 6 October 1957 with a discharge date of 5 December 1958 with an under other than honorable conditions discharge g. The complete facts and circumstances surrounding the applicant's discharge action are not available for review with this case. DD form 214 is not available. 4. By regulation, AR 635-200 (Personnel Separations-General Provisions for Discharge and Release) chapter 3-11 (Undesirable Discharge) states that an undesirable discharge is an administrative separation from the service under conditions other than honorable. It is issued in lieu of trial by court-martial except upon the determination by an officer exercising general court-martial. 5. 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. 1. 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 considered the applicant's statement, his record of service, the absence of a separation packet, the reason for his separation and whether to apply clemency. The Board applied Department of Defense published guidance for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board found insufficient evidence of in-service mitigating factors and the applicant did not provide character witness statements or evidence of post-service achievements for the Board to consider in support of clemency. Based on a preponderance of evidence and the relatively short term of service covered during this term of service, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct; there was insufficient evidence to determine the presence of an error or injustice. 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. 7/10/2019 X CHAIRPERSON Signed by: 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) 635-200 (Personnel Separations-General Provisions for Discharge and Release) in effect at the time, sets forth the basic authority for the 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 member'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 member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge c. Chapter 3-11 (Undesirable Discharge) states that an undesirable discharge is an administrative separation from the service under conditions other than honorable. It is issued in lieu of trial by court-martial except upon the determination by an officer exercising general court-martial. 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, 1. 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//