ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 April 2019 DOCKET NUMBER: AR20170015613 APPLICANT REQUESTS: 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) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Department of Veterans Affairs (VA) letter 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 completed basic training and advanced individual training and he was then sent to Fort Campbell, KY for jump school. Following that, he was sent to Germany. He never had any trouble until he arrived in German. He was bullied by older men so he ran away. When he returned, he learned that he had been reported absent without leave (AWOL). He never went to any court. He was stripped of his rank and discharged from service. He is asking for an honorable discharge before he expires from this life. 3. The applicant's service records are not available for review. An exhaustive search was undertaken to locate his military records which are necessary for the processing of his application. Unfortunately, they could not be found. This case is being considered based on the DD Form 214 submitted by the applicant. 4. A review of the applicant's DD Form 214 shows: a. He enlisted in the Regular Army on 23 July 1959 for 3 years. At the time of separation, he held military occupational specialty 111.00 (Light Weapons Infantry) and he was assigned to Company B, 2nd Armored Rifle Battalion, 52nd Infantry. b. He was discharged on 18 April 1961 under the provisions of Army Regulation (AR) 635-208 (Personnel Separations – Discharge – Unfitness and Unsuitability). This form further shows: * he was assigned Separation Program Number (SPN) Code 28N (Unfitness) * he received an under other than honorable conditions characterization of service * he completed 1 year, 7 months, and 26 days of active service and he had lost time from 5 to 11 February 1961, 21 February to 10 March 1961, and 2 to 7 April 1961 3. By regulation, Soldiers discharged for unfitness, frequent incidents of a discreditable nature will be furnished an Undesirable Discharge Certificate, except that an honorable or general discharge certificate may be awarded by the separation authority. 4. 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrades, the Board determined that relief was warranted. Based upon the type of misconduct, the age of the applicant at the time, as well as the passage of time, the Board concluded that granting clemency was appropriate by upgrading his characterization of service to Under Honorable Conditions (General). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X 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 interest of justice to do so. 2. Army Regulation (AR) 635-208 (Personnel Separations – Discharge – Unfitness and Unsuitability), in effect at the time of the applicant's separation from active duty, provided procedures and guidance for eliminating enlisted personnel for, in pertinent part, frequent incidents of a discreditable nature with civil or military authorities. This Army regulation provides that Soldiers discharged for frequent incidents of a discreditable nature will be furnished an Undesirable Discharge Certificate, except that an honorable or general discharge certificate may be awarded by the separation authority. 3. AR 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents. It also established standardized policy for preparing and distributing the DD Form 214. Section III contains guidance on the preparation of the DD Form 214. It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders. Paragraph 31 (Item 11c - Reason and Authority) states, in pertinent part, "the authority for transfer or discharge will be entered in this item by reference to the appropriate regulation, circular, bulletin, special separation directive, statute, etc., followed by the SPN and descriptive reason for transfer or discharge." 4. Army Regulation 635-5-1 (Separation Program Numbers (SPN) Codes), in effect at the time of the applicant's separation from active duty, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN codes to be entered on the DD Form 214. It identifies the SPN code of “28B” as the appropriate code to assign enlisted Soldiers discharged for unfitness who are involved in frequent incidents of a discreditable nature with civil or military authorities. 5. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), provides for the separation of enlisted personnel: a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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. Whenever there is doubt, it is to be resolved in favor of the individual. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 6. DOD guidance, 25 July 2018, subject: Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity. Injustice, or Clemency Determinations, provides standards for Discharge Review Boards (DRBs) and Boards for Correction of Military /Naval Records (BCM/NRs) in determining whether relief is warranted on the basis of equity, injustice, or clemency. It states, in pertinent part: a. While not everyone should be pardoned, forgiven, or upgraded, in some cases, fairness dictates that relief should be granted. The Boards are trusted to apply this guidance and give appropriate consideration to every application for relief. b. This guidance does not mandate relief, but rather provides standards and principles to guide DRBs and BCM/NRs in application of their equitable relief authority. Each case will be assessed on its own merits. The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each board. c. Relief is generally more appropriate for nonviolent offenses than for violent offenses. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, DRBs and BCM/NRs should also consider, among other matters: * An applicant's candor * Severity of misconduct * Length of time since misconduct * Acceptance of responsibility, remorse, or atonement for misconduct * The degree to which the requested relief is necessary for the applicant * Character and reputation of applicant * Meritorious service in government or other endeavors * Evidence of rehabilitation * Availability of other remedies * Job history * Whether misconduct may have been youthful indiscretion * Character references ABCMR Record of Proceedings (cont) AR20170015613 3 1