ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  12 September 2019

	DOCKET NUMBER:  AR20170014781


APPLICANT REQUESTS:  an upgrade of his under conditions other than honorable to a 
general under honorable condition or an honorable discharge  

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 he was absent without leave (AWOL) upon returning from 
Korea, due to having been married prior to being sent overseas, he went to see his wife 
who he had not seen for over a year.  Also, his grandfather passed around that time and 
his grief caused his poor decisions.  He realized his error and he knows that his conduct 
was not of military standards.

3.  A review of the applicant’s service record shows:  

	a.  He was inducted into the Army of the United States on 12 June 1962.  

	b.  The DA Form 26 (Insert sheet to DA Form 20 – Record of Court Martial 
Conviction) shows that he was charged on 26 June 1964, with two specifications of 
being absent without leave (AWOL) on 24 February 1964 and from 16 May to 9 June 
1964.  His punishment consisted of reduction to E-1, forfeiture of $28 per month for 
three months, and confinement at hard labor for three months, approved 1 July 1964.  

	c.  He accepted nonjudicial punishment on/for:  

*	23 September 1963, he failed to be at the appointed place of duty, his 
punishment in part reduction to Private/E-2
*	28 October 1963, violated a lawful order, sold a television set to an 
unauthorized person, his punishment in part reduction to Private/E-1

	d.  The service record is void of the applicant’s notification and acknowledgement of 
rights, waiver of a hearing before a board of officers, the immediate and intermediate 
commander’s recommendation to separation the applicant.  Therefore, the complete 
facts and circumstance surrounding the applicant’s discharge arte not available for 
review by the Board.  

	e.  On 23 June 1964, the general court martial authority accepted the applicant’s 
waiver of a hearing before a board of officers and approved the applicant’s discharge 
under the provisions of Army Regulation (AR) 635-208 (Personnel Separations 
Discharge – Unfitness), SPN 28B, because of unfitness  He directed the applicant be 
issued an undesirable discharge certificate.  

	f.  The applicant underwent a mental consultation on 29 June 1964.  The examiner 
diagnosed him with emotional instability; manifested by immaturity, impulsiveness, poor 
judgement, and absence of insight.  His findings were that the applicant was mentally 
responsible and able to distinguish right from wrong and adhere to the right, and had 
the mental capacity to understand and participate in board proceedings.  

	g.  Summary Court Martial Order (SCMO) Number 696, dated 1 July 1964, he was 
convicted and charged with two specifications of AWOL on 24 April 1964 and from 16 
May to 9 June 1964.  His sentence was reduction to E-1, confinement to hard labor for 
six months, and forfeiture of $28 pay per month for six months, adjudged on 26 June 
1964.  On 1 July 1964, the sentence was approved and executed and confine at the 
Army Armor Center Stockade, Fort Knox, KY.  

	h.  He underwent a medical examination on 10 July 1964, and the examiner qualified 
him for separation.  

	i.  SCMO Number 768, dated 23 July 1964, remitted the unexecuted portion of the 
sentence, effective the date of his administrative discharge.  

	j.  The applicant was discharged from active duty on 1 August 1962, 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 under conditions other than honorable (undesirable).    
His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 
shows he completed 1 year, 8 months and 18 days of net active service this period.  He 
had 154 days of lost time.

4.  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. 
5.  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.  

6.  By regulation AR 635-208, 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.  

7.  By regulation AR 635-5-1 (Personnel Separations-Separation Program Designators), 
states that the separation program number (SPN) code is used in statistical accounting 
to represent the reason for separation.  The 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.

8.  The Board should 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, to include the DoD 
guidance on liberal consideration when reviewing discharge upgrade requests, the 
Board determined relief was warranted.  Based upon the passage of time, the mental 
consultation diagnosis and the guidance on clemency opportunities, the Board 
concluded that granting a discharge upgrade so that the characterization of service 
reads Under Honorable Conditions (General) was appropriate.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a 
recommendation for 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).
	  
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 in

2.  AR 635-208 (Personnel Separations Discharge – Unfitness), 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  

3.  AR 635-200 (Personnel Separations - Enlisted Personnel), provides 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.

4.  AR 635-5-1 (Personnel Separations-Separation Program Designators), states that 
the separation program number (SPN) code is used in statistical accounting to 
represent the reason for separation.
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.   

ABCMR Record of Proceedings (cont)	 AR20170014781

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