ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 2 July 2019 DOCKET NUMBER: AR20170013768 APPLICANT REQUESTS: a reconsideration of his previous request for an upgrade to his undesirable discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 AC84-00619 on 11 April 1984. 2. The applicant states: a. He believe his discharge determination was unjust due to the fact that he had permission from his sergeant to go on leave. However, after being picked up for hitchhiking there was not documentation that his leave was authorized. The sergeant denied authorizing his leave, he was disappointed and disheartened by his failure to tell the truth and requested for a discharge immediately. b. During his 2 years, 3 months and 16 days in the Army he had honorable service and was never in trouble. Due to this determination, he and his wife are not eligible for veteran affair benefits. His military record will verify this information. He had 6 months left to serve but was feeling betrayed, he had been serving and felt he could no longer stay knowing the truth. 3. The applicant provides his DD Form 214 which shows his service from 27 March 1962 to 22 October 1964. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 27 March 1962. b. He accepted nonjudicial punishment on: * 13 April 1964 for AWOL from 27 March to 31 March 1964, his punishment in part reduction to E-2 * 27 April 1964 for AWOL from 23 April to 24 April 1964 * 11 August 1964 for missing bed check * 14 September 1964 for missing muster formation, his punishment in part, reduction to E-2 c. The DA Form 26 (Insert sheet to DA Form 20 – Record of Court Martial Conviction) shows: * he was charged on 9 May 1964, with one specifications of being absent without leave (AWOL) from 2 May to 4 May 1964. His punishment in part consisted of reduction to E-1, forfeiture of $75 per month for one month, and confinement at hard labor for one month * on 6 August 1964, with one specification of AWOL from 1 July to 19 July 1964. His punishment in part consisted of reduction to E-1, forfeiture of $73, per month for three months, and confinement at hard labor for three months d. His DD for 458 (Charge Sheet), dated 5 May 1964 reflects court-martial charges were preferred against the applicant for one specification of being AWOL from 2 May to 4 May 1964. His punishment confined at hard labor for one month, forfeiture of $73 per month for one month and reduction to E-1. On 9 May 1965 approved and ordered executed, but that portion adjudging confinement at hard labor for one month was suspended for 6 months unless suspension was vacated sooner. e. Summary Court Martial Order (SCMO) Number 1, dated 25 May 1964, states so much of the SCMO Number 3, as suspended for six months, execution of the sentence to confinement at hard labor for one month in the case of the applicant was vacated. f. On 6 August 1964, he was convicted by a special court-martial and charged with one specifications of AWOL 1 July to 19 July 1964. His punishment in part, confined to hard labor for three months, forfeiture of $73 per month for three months, and reduction to E-1. The sentence approved and duly executed on 14 August 1964. g. On 22 October 1964, the applicant signed a statement indicating no change in his physical condition since his last final physical examination on 7 August 1964. h. Summary Court Martial Order (SCMO) Number 213, dated 22 October 1964, discharged the applicant under the provisions of AR 635-208 Personnel Separations Discharge – Unfitness, and cited the discharge type as undesirable. i. The applicant was discharged from active duty on 22 October 1964 under the provisions of AR 635-208, SPD 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 His service characterization is undesirable. His DD Form 214 shows he completed 2 years, 3 months, and 16 days of active service this period. He had 102 days of lost time. 5. The Army Board for Correction of Military Records by letter, to the applicant on 25 July 1984, informed him that his request for correction of his Army records was denied, not enough proof was presented to show that an error or injustice exists in the record. 6. By law and regulation, periods of AWOL, confinement, and desertion are considered lost time which is not creditable service for pay, retirement, or veterans' benefits. The lost time is required to be listed on the DD Form 214 even if the periods of time lost were later made up. 7. The regulation in effect at the time provided for unfitness states that an individual is subject to separation under the provisions of this chapter when one or more of the following conditions exits due to 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 of offenses. 8. 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. 9. 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 reviewing the application and all supporting documents, the Board found the relief was warranted. 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. One member voted to deny his request as he also failed to show no remorse and accept responsibility for his pattern of misconduct. The majority voted to grant relief based upon the severity of the misconduct that resulted in his separation. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AC84-00619 on 11 April 1984. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 22 October 1964 showing his character of service as under honorable conditions (General). 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. AR 635-208, then in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness. Individuals would be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warranted a general or honorable discharge, when it had been determined an individual's military record was 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. 2. 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) AR20170013768 4 1