ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 July 2019 DOCKET NUMBER: AR20170015546 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions discharge to honorable discharge (due to hardship) * a 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 United States Report of Transfer or Discharge) 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 realizes he was wrong for what he did, but he also thinks his battery commander was also wrong. There were mitigating circumstances and he requested a hardship discharge because of his wife's condition. She was pregnant and had a lot of problems. He had a job waiting for him. His commanding officer (CO) had just taken command when his request for hardship discharge was submitted. He went to see the CO about the hardship discharge, and the CO told him to forget about the request and placed it in his desk, he said the request would stay in his desk. He felt the CO was wrong then and continued to believe that his he was wrong in dealing with his hardship discharge request. He realizes his conduct was wrong then and he is sorry for what he did. He had a good military record, 2 1/2 years up until that time. He would like to get his discharge changed. He has been a good citizen since then and he is very proud of his country and he is proud of his time in the military before he got into trouble. 3. A review of the applicant’s service record shows: a. 14 September 1960, he enlisted in the Regular Army. b. 1 March 1961, he was convicted by a summary court-martial of one specification of being absent without leave (AWOL) from 20 February 1961 to 21 February 1961. The court sentenced him to hard labor without confinement for 30 days and reduction to private/E-1. c. June 1962, he accepted nonjudicial punishment under the provisions of Article 15 for failure to repair. d. 8 February 1963, he was convicted by a special court-martial of two specifications of AWOL from 17 to 26 December 1962 and 9 to 24 January 1963. The court sentenced him to hard labor without confinement for 45 days, forfeiture of $30 pay for 5 months (suspended), and reduction to E-1. It was approved on 8 February 1963. e. 5 April 1963, he was convicted by a special court-martial of one specification of AWOL from 8 February to 25 March 1963. The court sentenced him to confinement at hard labor for 6 months, forfeiture of $43 pay for 6 months, and reduction to E-1. It was approved on 9 April 1963. f. 5 April 1963, the applicant’s immediate commander notified the applicant of initiation of separation under the provisions of Army Regulation (AR) 635-208 (Personnel Separations Discharge Undesirable Habits and Traits of Character), for undesirable habits and traits of character. g. 5 April 1963, he acknowledged receipt of the commander's intent to separate him and consulted with legal counsel. He was advised of the basis for the contemplated separation for undesirable habits and traits of character under the provisions of AR 635-208, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He indicated that he understood: * he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he could be ineligible for many or all benefits as a veteran under federal and state laws as a result of the issuance of an under other than honorable conditions discharge * he elected not to submit a statement on his own behalf * he could request a hearing before a board of officers h. 24 April 1963, the applicant received a medical and mental evaluation and was found within normal limits. There was no evidence of a psychological disorder, cleared for any administrative action deemed appropriate by command. i. 13 May 1963, the unit commander recommended separation from the service and waiver of further rehabilitative efforts. The commander’s reason for separation was the applicant had served under different platoon leaders and different company commanders with no improvements in duty performance. The applicant’s platoon leader and platoon sergeant went to the applicant’s home, placed him under military control, and returned him to his unit, so he would not be charged AWOL. The applicant was capable of preforming his duties but refused to do so. j. The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action to be characterized as under honorable conditions. k. 14 May 1963, the separation authority approved the applicant’s discharge under the provisions of AR 635-208, separation for undesirable habits and traits of character. He directed the issuance of an Undesirable Discharge Certificate (DD Form 258A). l. 26 June 1963, the applicant was discharged. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of AR 635-208, separation program number (SPN), 28B (unfitness) for undesirable habits and traits of character, with a characterization of service as under other than honorable conditions. He completed 2 years, 4 months, and 11 days with 152 days lost. It also shows he was awarded or authorized the parachutist Badge. 5. The applicant’s record is void of evidence that shows he requested an upgrade through the Army Discharge Review Board within its 15-year statute of limitations. 6. By regulation (AR 635-208), enlisted Soldiers could be eliminated from the service of for unfitness due to having undesirable habits and traits of character. An individual will be discharged from the service under these regulation when it is clearly established that it is unlikely that he/she can be rehabilitated to the extent where he/she may be expected to become a satisfactory Soldier. 7. By regulation (AR 635-200), enlisted members may be discharged or released because of hardship. Hardship exists when in circumstances not involving death or disability of a member of the Soldier’s immediate family, separation from the service will materially affect the care or support of the family by alleviating undue and genuine hardship. 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. 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: The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 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 a pattern of misconduct, as well as the failure to accept responsibility and show remorse for the events leading to his separation, 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 635-208, (Personnel Separations Discharge Undesirable Habits and Traits of Character), in effect, at the time set forth the basic authority for separation of enlisted personnel having undesirable habits and traits of character. The regulation stated, in pertinent part, that recommendation for discharge because of undesirability would be made in the case of an enlisted person who 1) gave evidence of an antisocial or amoral trend, chronic alcoholism, criminalize, drug addiction, pathological lying, or misconduct; 2) possessed unclean habits, including repeated venereal infections; 3) repeatedly committed petty offenses not warranting trial by courts-martial; 4) was a habitual shirker; 5) was recommended for discharge by a disposition or other board of medical officers because he possessed a psychopathic (anti-social) personality disorder or defect, or was classified as having "no disease" by the board, and his record of service revealed frequent disciplinary actions because of infractions of regulations and commission of offenses, or it was clearly evident his complaints were unfounded and were made with the intent of avoiding service; or 6) demonstrated behavior, participated in activities, or associations which tended to show that he was not reliable or trustworthy. Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier. When separation for unfitness was warranted, an undesirable discharge was normally issued. 3. Army Regulation 635-200, (Personnel Separations) paragraph 6-3, states that Soldiers of the Active Army and the Reserve Components may be discharged or released because of genuine dependency or hardship. The regulation provides that hardship exists when, in circumstances not involving death or disability of a member of a Soldier’s (or spouse’s) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship. Under this provision for hardship discharge, parenthood of married service women and sole parenthood are the two conditions under which separation may be granted. 4. 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. 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) AR20170015546 5 1