ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 September 2019 DOCKET NUMBER: AR20170012569 APPLICANT REQUESTS: * an upgrade of his under conditions other than honorable conditions discharge to an honorable conditions discharge * correction of social security number (SSN) on DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) ending 7 November 1963 * correction of date of birth on DD Form 214 ending 28 August 1968 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * DD Form 214 ending 7 November 1963 * DD Form 214 ending 28 August 1968 * hunter holmes mcguire medical center letter * social security statement 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 had many challenges in 1969, his baby sister died leaving four children under the age of 4 years old, which caused him to return to Lexington, KY to help his older sister with the children. Due to being imprisoned on 10 November 1975 to date, all of his personal records were lost or simply discarded in transitioning. 3. The applicant provides: a. A self-authored statement detailing the events from 8 November 1961 to his discharge in 1968, and he mentioned a newly assigned social security number. He was a. drafted under SSN ###-XX-XXXX, on 8 November 1961 through 7 November 1963. Item #32 "remarks" of his DD Form 214 ending 7 November 1963 shows the wrong SSN (###-XX-XXXX versus ###-XX-XXXX). He had some challenges back in 1968. He took an unauthorized leave of absence, due to issues with his marriage, finances, and other family issues and missed formations. After being confined, he found out that his wife had taken up with another man and he was compelled to sneak out of confinement; he was humiliated. b. His service did not warrant the unjust undesirable discharge on 7 May 1968, in which he mentioned he has not been able to secure a copy. His bible maintained his date of birth of ## XXX verses his ## XXX . Had he been given a second change, he would have chosen to suffer said losses and humiliations, rather than take unauthorized leave of absence. Things happened so fast back then, coupled with these 41 years spent in prison, he has repented and accepted a total transformation in Christ, please consider upgrading his discharge, so he can leave his family a legacy of legitimacy. c. His DD Form 214 from 8 November 1961 to 7 November 1963 and 3 January 1964 to 28 August 1968. d. A letter from Hunter Holmes McGuire Medical Center, forwarding the applicant's case to the Board for review. e. Social Security Statement from the Social Security Administration explaining various benefits and informing him that the last four of his new SSN is XXX-XX-####. 4. A review of the applicant's service record shows: a. He was inducted into the Army of the Armed Forces of the United States on 8 November 1961. b. His DD Form 47 (Record of Induction) and DD Form 4 (Enlistment Record- Armed Forces of the United States) shows his date of birth as ## XXXXX, XXXX, his service record is void of the date of birth ## XXXXX, XXXX. The newly assigned SSN XXX-XX-####, is also void in his service records. c. He was honorably discharged on 7 November 1963. d. He enlisted in the Regular Army on 3 January 1963 a. e. The DA Form 20B (Insert sheet to DA Form 20 - Record of Court Martial Conviction) shows he was charged with: * wrongful possession with the intent to deceive a certain instructor purporting to be a temporary vehicle permit, his punishment; adjudged 22 June 1965, and approved 24 June 1964 * being absent without leave (AWOL) on 31 October 1967 to 13 Jan 1968, his punishment forfeiture of $86 per month for two months confined at hard labor for two months, reduction to E-1, adjudge 25 Jan 1968, and approved 1 February 1968 * AWOL from 26 January to 11 May 1968, his punishment forfeiture of $68 per month for four months, adjudge 28 May 1968, an approved on 14 June 1968 f. He accepted non judicial punishment on: * 13 December 1965, he disobeyed a lawful order by the Military Policeman * 6 February 1967, AWOL from 28 January to 30 January 1967. His punishment in part seven days extra duty and forfeiture of $50 per month for one month, suspended until 1 August 1967 g. Special Court Martial Order (SPCMO): * Number 58 - dated 4 May 1966, shows was found not guilty of being disrespectful in language toward his platoon sergeant * Number 251 - 1 February 1968, shows he was charged with one specification of AWOL from 31 October 1967 to 13 January 1968, his punishment, reduction to E-1, forfeiture of $86 pay per month for two months, and confinement to hard labor for two months, adjudged 25 January 1968, approved and duly executed on 1 February 1968 * Number 1529 - dated 14 June 1968, shows he was charged with one specification of AWOL from 24 January 1966 to 11 May 1968, his punishment, confinement to hard labor for four months and forfeiture of $68 per month for four months, adjudged on 28 May 1968, approved and duly executed on 14 June 1968 * h. On 22 June 1968, the applicant's immediate commander notified the applicant of his intent to separate him under the provisions of Army Regulation (AR) 635-212, (Discharge - Unfitness and Unsuitability), for unfitness on the grounds of shirking and frequent incidents of a discreditable nature with military authorities. He advised of him that he will be counseled by a legal advisor from the staff judge advocate. He explain the rights with regard to the possible elimination, which included the right to: * present his case before a board of officers * submit a statement in his own behalf * to be represented by counsel; of military counsel of his own choice or civilian counsel at his own expense * to waive the above rights i. After consulting with legal counsel on 24 June 1968, of the basis for the contemplated action to accomplish his separation under the provisions of AR 635-212, for unfitness, and its effects, the right available to him, and the effect of any action taken by waiving his rights. He acknowledged: * and waived rights to consideration of his case by a board of officers * and waived a personal appearance before a board of officers * •the right to submit a statement on his own behalf, he elected not to submit a statement * and waived his right to be represented by counsel * he understood that would could encounter substantial prejudice in civilian life if general discharge under honorable conditions is issued j. On 7 August 1968, his immediate commander initiated the recommendation to separate him under the provisions of AR 635-212, paragraph 6a (1), for being AWOL three times from various units of assignment and was subsequently dropped from rolls as a deserter two times. For three non-judicial punishments and as a result of court martial convictions he was confined two times. Due to his various disciplinary infractions he was considered unfit for military service. k. Consistent with the chain of command recommendations on 15 August1968, the separation authority waived further counseling and rehabilitation and approved the request for discharge under the provisions of AR 635-212, for unfitness. He directed he be furnished an undesirable discharge. l. SPCMO Number 239, dated 16 August 1968, states the unexecuted portion of the approved sentence to confinement at hard labor for two months, adjudged 25 January 1968, and promulgated in SPCMO Number 251, dated 1 February 1968 and the unexecuted portion of the approved sentence to confinement at hard labor for four a. months, adjudged 28 May 1968, and promulgated in SPCMO Number 1529, dated 14 June 1968 in the case of the applicant were remitted, effective 22 August 1968. m. The applicant was discharged from active duty on 28 August 1968, under the provisions of AR 635-212, SPN 28B - unfitness, an established pattern for showing dishonorable failure to contribute adequate support to dependents or failure to comply with order, decrees, or judgment of a civil court concerning support of dependents. His service characterization is under conditions other than honorable (undesirable). His DD Form 214 shows he completed 3 years, 9 months and 24 days of active service this period and 2 years, 1 month and 26 days prior service. He had 306 days of lost time. 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 6. Army Regulation, SPN 28B - Unfitness, is an established pattern for showing dishonorable failure to contribute adequate support to dependents or failure to comply with order, decrees, or judgment of a civil court concerning support of dependents. 7. By regulation 635-212, paragraph 4a states that an individual separated by reason of unfitness will be furnished an undesirable discharge certificate except that an honorable or general discharge certificate may be awarded if may be awarded if the individual being discharged has been awarded a personal decoration or if warranted by the particular circumstances in a given case. 8. By regulation AR 635-200 (Personnel Separations - Enlisted Personnel) an undesirable discharge is an administrative separation from the service under conditions other than honorable. It may be issued for unfitness, misconduct, homosexuality, or for security reasons. The applicant provided a copy as supporting documentation in which he stated he is unable to secure. 9. The Board should consider the applicants petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board found some relief was warranted. Based upon the requested date of birth being reflected on previously published DD Form 214s, the Board found that the DOB reflected on the applicant's 28 August 1968 was an error and should be corrected. The Board did not find any error or injustice related to the applicant's SSN. The SSN reflected on the applicant's DD Form 214s are all consistent and without justification, the Board found insufficient evidence to make the SSN. Additionally, based upon the pattern of misconduct and the post-service confinement of the applicant, the Board concluded that there was no evidence to show mitigation or clemency was warranted. There is no evidence that the applicant has learned and grown from the events related to his separation. Therefore, the Board recommended denying the requested upgrade. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by amending the applicant's DD Form 214 with an ending date of 28 August 1968 by changing his DOB reflecting the date shown on his previous DD Form 214, dated 7 November 1963. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to all other requested relief. 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. AR 635-212 (Discharge - Unfitness and Unsuitability), provides procedures and guidance for eliminating enlisted personnel who are found to be unfit or unsuitable for further military service. a. Paragraph 4b, states that an individual separated by reason of unsuitability will be furnished an honorable or general discharge certificate as warranted by his military record. b. Paragraph 6a, states an individual is subject to separation under the provisions of this regulation when one or more of the following conditions exist for unfitness: * 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 * drugs addiction or the unauthorized use or possession of habit-forming drugs or marijuana * an established pattern for shirking * an established pattern showing dishonorable failure to pay just debts * an established pattern showing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgments of a civil court concerning of dependents 3. AR 635-200 (Personnel Separations - Enlisted Personnel) states an undesirable discharge is an administrative separation from the service under conditions other than honorable. It may be issued for unfitness, misconduct, homosexuality, or for security reasons. 4. Army Regulation 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214. The purpose of the separation document is to provide the individual with documentary evidence of their military service. Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214. 1. 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 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.