ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 July 2019 DOCKET NUMBER: AR20170015024 APPLICANT REQUESTS: upgrade of his general under honorable conditions discharge to an honorable 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) * VetVerify email 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 Item 13 (Character of Service) of his DD Form 214, shows “Under Honorable Conditions”, which is not accepted by a Veteran’s benefits data program called “VetVerify”, thus affecting his military exchange privileges 3. The applicant provides an email he received from the VetVerify veterans online shopping benefit program, notifying him that an honorable discharge is required to be eligible for benefits under their program. 4. A review of the applicant’s service record shows: a. He enlisted for 3 years in the Regular Army on 14 October 1959. b. Section 10 (Remarks) of the applicant’s DA Form 24 (Service Record), references, in part, the applicant received “Unsatisfactory Conduct and Efficiency rating due to five (5) Article 15s." However, the applicant’s service record contained documentation detailing he accepted nonjudicial punishment (NJP) under the provisions of Article 15 on 7 June 1961, refusing to drive a truck and missed available transportation going to the motor pool to pick-up trucks for the readiness test. His punishment consisted, in part of a reduction to private /E-2. c. Orders Number 33, dated 20 October 1961, authorized the applicant a temporary promotion to private first class/E-3. d. On 29 August 1962, the applicant’s immediate commander recommended him for a bar to reenlistment for unsatisfactory conduct and inefficiency. The applicant was notified and afforded the opportunity to provide a statement on his behalf, but he declined. e. On 5 September 1962, he was convicted by a summary court-martial of one specification of failing to awaken personnel during a practice readiness test, as directed in his duties as charge-of-quarters The court sentenced him to restriction for 30 days, and forfeiture of $70.00 per month for one month. The convening authority approved the sentence and ordered it executed on 30 August 1962. f. The applicant’s intermediate command endorsed the bar to reenlistment recommendation on 5 September 1962. The bar was approved by the approving authority on 7 September 1962 and the applicant was notified/counseled on 14 September 1962. g. The applicant accepted NJP under the provisions of Article 15 on 28 September 1962, for absenting himself from bed check in the billets. His punishment consisted, in part of a reduction to private/E-2. h. On 9 October 1962, the applicant was released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement). His DD Form 214 shows he was released under the provisions of AR 635-205 (Personnel Separations – Discharge and Release Convenience of the Government), paragraph 7, for early release as an overseas returnee with a general under honorable conditions discharge. He completed 2 years, 11 months, and 24 days of active service with lost time from 5 to 6 March 1960 5. By regulation (AR 635-205), in effect at the time, commanders are authorized to order separation for the convenience of the Government of enlisted personnel returned to the continental United States after serving overseas. Enlisted members of the Regular Army that have less than 3 months remaining before expiration term of service (ETS) will be discharged (Convenience of the Government – prior to ETS), released from active duty, and transferred to the U.S. Army Reserve as appropriate. a. The issuance of an honorable discharge is conditional upon proper military behavior and proficient and industrious performance of duty, giving due regard to the rank or grade held and the capabilities of the individual concerned. b. 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. 6. The Board should consider the applicant’s submission 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 that relief was warranted. Based upon the type of misconduct which led to the applicant’s separation and the passage of time, the Board concluded to grant clemency by recommending an upgrade to the applicant’s characterization of service to Honorable. 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 Honorable. 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 635-205, paragraph 7, provides, in part, commanders are authorized to order separation for the convenience of the Government of enlisted personnel returned to the continental United States or to the Territory or possession of the United States in which enlisted, inducted, or ordered to active duty after serving overseas. Enlisted members of the Regular Army that have less than 3 months remaining before expiration term of service (ETS) will be discharged (Convenience of the Government – prior to ETS (PETS)), released from active duty, and transferred to Army Reserve as appropriate 3. Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), in effect at the time, governs the separation of enlisted personnel. a. Paragraph 9 states that an honorable discharge is a separation from the Army with honor. The issuance of an honorable discharge is conditional upon proper military behavior and proficient and industrious performance of duty, giving due regard to the rank or grade held and the capabilities of the individual concerned. b. Paragraph 10 states that 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. Army Regulations 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. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 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 on the basis of 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) AR20170015024 4 1