ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 December 2019 DOCKET NUMBER: AR20170013513 APPLICANT REQUESTS: in effect: * Reconsideration for, an upgrade of his characterization of service from under other than honorable conditions to honorable * 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 US Report of Transfer or Discharge) * Chronological Record of Military Service * Self-Authored Statement * Letters in Support of Character (5) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20040003629 on 12 April 2005. 2. The applicant states, he loves his country and he was an admirable Soldier until he was treated unjustly by some fellow Soldiers. The Soldiers attacked him and broke his right arm, and he was always on guard afterwards. He suffered from depression and then had a disagreement with his captain about a mirror while he was driving. He also states he was born with a lack of oxygen, and can’t think like others, and suffer from severe headaches which affected his sleeping and eating patterns. He considered making the Army a career until he was attacked. After the Army, he entered the State mental hospital in Florida and was prescribed medication. He completed a heating, air conditioning and commercial refrigeration course and opened his own business, retiring in 1996. He visits sick kids to cheer them up, and he isn’t asking for much, just an upgrade to reflect the admirable service he gave to the Army. 3. The applicant provides: a. DD Form 214, dated 27 July 1962, which reflects that he was discharged under the provisions of AR 635-208 with a under other than honorable conditions characterization of service. He had 1 year, 10 months, and 8 days of active service. He also had 26 lost days from 23 ay 1962 to 17 June 1962. b. Chronological Record of Military Service, which reflect that he received unsatisfactory ratings for conduct and efficiency his entire time in the 342nd Transportation Company. c. Letter of Support (XX), dated 21 June 2017, which states that the author has known the applicant for 50 years, and have done business with him for over 25 years. He believes the applicant to be upfront, honest, and trustworthy, that always go the extra mile to get a job done. d. Letter of Support (XX), dated 20 June 2017, which states the author has known the applicant for 59 years, since attending school together, and he considers him a friend and a successful businessman. He unselfishly volunteers his time within his community with the elderly and children. He is a caring, kind, and trustworthy individual. e. Letter of Support (XX), dated 22 June 2017, which states that the author has known the applicant for 50 years and he is a dependable, responsible and respected successful businessman. He is friendly, and accommodating in helping others. He is known for using his mule, and/or dog to entertain residents at assisted living and nursing homes. He is a loyal friend. f. Letter of Support (XX), dated 21 June 2017, which states the author has known the applicant for more than 40 years, and considers him a honest hardworking man, who’s business ethics are outstanding. g. Letter of Support (XX), dated 22 June 2017, which states the author has known the applicant for 40 years, and considers him a good friend, and customer. He is someone that can always be counted o, and is a man of his word. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army (RA) on 24 August 1960. b. Court martial charges were preferred on 23 May 1962. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of incapacitation to properly perform duties due to intoxication. His sentence was reduction to Private (E-1/PVT), forfeiture of $55.00 and confinement with hard labor for 30 days. c. On 11 June 1962, he acknowledged that he was advised of the actions taken against him to separate him for unfitness under the provision (UP) of Army Regulation (AR) 635-208 (Personnel Separations – Unfitness). He waived counsel, and a board hearing. d. On 13 June 1962, his immediate commander officially initiated actions to separate him UP AR 635-208 for his record of disciplinary issues, including a summary court martial, and two article 15 punishments and his total disregard for regulations, an intolerable record of misconduct, disrespect toward superiors and dereliction of duty. e. On 15 June 1062, his chain of command recommended approval of the separation UP AR 635-208 with an undesirable discharge and stated that rehabilitation efforts have failed. f. Subsequently, the approval authority approved his separation UP AR 635-208 with a undesirable discharge. g. His DD Form 214,reflect on 27 July 1962, that the applicant was discharged under the provisions of AR 635-208 with a under other than honorable conditions characterization of service. He had 1 year, 10 months, and 8 days of active service. He also had 26 lost days from 23 May 1962 to 17 June 1962. 5. On 12 April 2005, the Board denied his application and determined that the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction. 6. There is no information on file in the record that indicates the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15- year statute of limitations. 7. By regulation AR 635-208, in effect at the time, it provided for the separation of members for unfitness based on frequent involvement in incidents of a discreditable nature with civil or military authorities. An undesirable discharge was normally considered appropriate for members separated under this regulatory provision. 8. 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. 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 they could reach a fair and equitable decision in the case without a personal appearance by the applicant. Additionally, the Board found that partial relief was warranted. Based upon the justification for the separation outlined within the separation packet, the Board found that the characterization of service given at the time of separation was too harsh and warranted correction. As such, the Board recommended upgrading the characterization of service to Under Honorable Conditions (General). 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 the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 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 upgrading the characterization of his discharge to Honorable. 2/5/2020 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. Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel. It provided for the separation of members for unfitness based on frequent involvement in incidents of a discreditable nature with civil or military authorities. An undesirable discharge was normally considered appropriate for members separated under this regulatory provision. 2.. 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. 3. AR 635-200 (Active Duty Enlisted Administrative Separations), sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. a. Chapter 13, allows a Soldier to be separated when it is determined that he/she is unqualified for further military service because of unsatisfactory performance. b. 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. c. 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. NOTHING FOLLOWS