ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  9 July 2019

	DOCKET NUMBER:  AR20170015339


APPLICANT REQUESTS:  in effect, an upgrade of his under other than honorable conditions discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-Authored 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 was told to sign a waiver and was unaware of what it meant at the time.  He was supporting his parents and was told it was a way to get discharged.  He is 78 years old with five children, ten grandchildren, and four great-grandchildren.  He has held a respectable job all his life and he needs in his heart and mind to have a good discharge.  The discharge is a regret and it upsets him day in and day out.  

3.  The applicant provides a self-authored statement.  He states there were medical documents from clergy, doctors, and his Congressman to show that he was needed to support his ill parents.  His superiors convinced him that it was the correct thing to do and when he found out there was a better way it was too late.  His health is deteriorating and any positive help is appreciated, even an upgrade to a general discharge.

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

a. He was inducted into the Army of the United States on 8 December 1961.

   b.  On 21 March 1962, the applicant’s congressman sent a letter to the Commanding General (CG) stating the applicant was needed at home.  He asked if they could counsel the applicant on procedures for a hardship discharge.  The applicant was counseled.

	c.  Ten letters of support were located in the applicant’s record ranging from 21 March 1962 to 21 September 1962.  A letter from the mother’s attending physician, dated 30 August 1962, was among those letters stating she had been under his care for several years and the conditions were progressively worsening.  

	d.  He was convicted by a special court-martial on 19 September 1962 for one specification of being absent without leave (AWOL) from 9 April 1962 to 27 August 1962.  His sentence included confinement for six months, forfeiture of $55.00 per month for six months, and to reduction to private/E-1.

	e.  His attorney followed up with a letter on 25 September 1962 notifying the commander that letters had been received concerning the prevailing conditions of his family and that there was evidence of great emotional and financial pressure that would substantiate a finding of hardship.  He requested assistance in alleviating the situation.

	f.  On 5 December 1962, Special Court-Martial Order 369 suspended the unexecuted portion of the sentence to confinement for six months and forfeiture of $55.00 per month for six months until 17 March 1963.

	g.  On 19 February 1963, Special Court-Martial Oder 19 executed the sentence to confinement for six months and forfeiture of $55.00 per month for six months and the applicant, identified as the prisoner, was credited with confinement served from 18 February 1963.  

	h.  On 7 March 1963, the applicant submitted an application for hardship/ dependency discharge with approval recommended by his immediate commander.

	i.  A second letter, dated 15 March 1963, from his mother’s attending physician was attached and listed her conditions.  Additionally, the physician stated she was considered very serious and incurable after 6 years of treatment.  The physician also indicated the husband was unable to work and they had no other children at home to provide for them.

	j.  On 29 March 1963, the application was returned without action.  The regiment commander indicated no further action would be taken until termination of disciplinary action or administrative board proceedings.

	k.  The applicant was convicted by a special court-martial on 12 March 1963 for one specification of being AWOL from 5 January 1963 to 18 February 1963.  His sentence included confinement for six months and forfeiture of $28.00 per month for six months.

	l.  On 24 April 1963, the applicant’s immediate commander initiated elimination action on the applicant under the provisions of Chapter 13, Army Regulation (AR)     635-208 (Personnel Separations – Discharge: Unfitness) because he was considered unfit for further service due to misconduct.

	m.  On 3 May 1963, the separation authority approved the commander’s request for discharge.  He would be issued an Undesirable Discharge Certificate.

	n.  He was discharged from active duty on 10 May 1963 under the provisions of AR 635-208 with an under other than honorable conditions characterization of service.  His DD Form 214 shows he completed 5 months and 23 days of active service with 344 days of lost time.

5.  By regulation, individuals will be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warrant a general or honorable discharge.

6.  In reaching its determination, the Board can consider the applicants’ petition in his service record in accordance with published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined relief is not 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 current character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the short term of honorable service completed prior to multiple lengthy AWOL offenses, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	X	X	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
	 
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 (AR) 635-208 (Personnel Separations – Discharge: Unfitness) in effect at the time, establish policy and provide procedures and guidance for the prompt elimination of enlisted personnel who are determined to be unfit for further military service.  Individuals will be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warrant a general or honorable discharge, when it has been determined that an individuals’ military record is 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 (Active Duty Enlisted Administrative Separations), currently in effect, provides the policy and procedures 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 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.

	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 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170015339


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