ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 May 2019 DOCKET NUMBER: AR20170018098 APPLICANT REQUESTS: His undesirable discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge form the Armed Forces of the United States) * DD Form 214 (Report of Separation from the Armed Forces of the United States), for the period ending on or about 1 July 1955 * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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: a. His conduct as a Browning Automatic Rifleman (BAR) in Korea was reliable and trustworthy. The charges were unfair because he only missed reveille one time, which did not make him unreliable and untrustworthy for the rest of his life. b. He is 81 years old and has lived all his life with the bad decision he made when he was 19 years old. He knows what he did was wrong but does not believe he deserved a bad conduct discharge for getting drunk and missing muster one time. After combat in Korea, he went out drinking with some fellow Soldiers to get away from the pain and memories of combat. He takes responsibility for getting drunk and missing the last bus back to post at 1:00 AM. c. He doesn’t feel this single mistake makes him unreliable and untrustworthy for the rest of his life. He was a BAR in Korea and men in his squad thought he was a. trustworthy and reliable enough to protect them with automatic fire. He was told he was one of the best at the time. So he was trustworthy and reliable when it counted the most. He can’t see or hear well, he is homeless, and he lives on $700 a month. He doesn’t see anything in the future but a cheap grave. All he has to be proud of is being a good BAR in Korea. 3. The applicant enlisted in the Regular Army on 14 October 1952. He served in the Republic of Korea from on or about 11 April 1953 through on or about 25 June 1954. 4. The applicant’s service contains a Record of Court-Martial Conviction, a DD Form 493 (Record of Previous Convictions), and a DD Form 458 (Charge Sheet) that shows he was charged with failing to go at the prescribed time to his appointed place of duty, on or about 4 April 1954, and with being absent without leave (AWOL) from on or about 16 April 1955 through on or about 19 April 1955. 5. The applicant received a medical evaluation on 25 May 1955, in preparation for his recommended discharge under the provision of Army Regulation 615-368 (Enlisted Personnel – Discharge – Unfitness). The evaluation provided a synopsis of the applicant’s military and medical history, a diagnosis of passive-aggressive personality, and the recommendation that he be administratively discharged. 6. The applicant’s commander requested the applicant be brought before a board of officers, on 15 June 1955, to determine if he should be eliminated from service under the provisions of Army Regulation 615-638. The commander listed the following as reasons for his requested action: [The applicant] is uncooperative, lazy, slow, a habitual shirker, and repeatedly commits petty offenses not warranting trial by court-martial. He has committed a more serious offense, being AWOL, which resulted in trial by court-martial. He has committed numerous minor offenses for which he should have been given Article 15, but it would have had no effect since he does not respond to any form of correction. His habits are such that he has to be constantly told to clean his clothing and area. His behavior and associations are such that he is not reliable or trustworthy. He has been counselled on numerous occasions but it has accomplished nothing. He has been placed on different types of jobs but his attitude and performance of duty did not improve. This man is not a credit to the United States Army, and I recommend that he be separated under the provision of AR 615-368. 7. The applicant was notified that he would appear before a board of officers on 20 June 1955, which would be convened to consider his worthiness for further military service. He acknowledged receipt of the notification memorandum on 18 June 1955 and requested representation by counsel. 8. The Report of Proceedings of Board of Officers shows the applicant appeared before the board on 20 June 1955. The Board provide the following remarks, "Behavior, activities, or associations which tend to show that the individual is not reliable or trustworthy." The Board recommended the applicant be discharged from the service because of unfitness and be issued a DD Form 258A (Undesirable Discharge Certificate). 9. The applicant was discharged on 1 July 1955. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 615-368, by reason of unfitness. His DD Form 214 confirms he was issued an Undesirable Discharge Certificate. It further shows in: * Item 24 (Total Net Service Completed for Pay Purposes), he was credited with 2 years, 8 months, and 16 days of service * Item 26 (Foreign and/or Sea Service), he was credited with 1 year and 3 Months of foreign service * Item 27 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized), he was awarded or authorized the National Defense Service Medal, Korean Service Medal (2 Campaign Stars), Combat Infantryman Badge, United National Service Medal, and Korean Presidential Unit Citation * Item 38 (Remarks), the entry: "Item 8 – Unfitness – Behavior, activities, or associations which tend to show that this individual is not reliable or trustworthy." and "5 days lost under Sect 6a, Appendix 2B, MCM 1951" 10. The Board should consider the applicant's statement 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 not warranted. Based upon the multiple negative information and performance comments within his service record, the Board determined that there was insufficient evidence to warrant a change in the record. For that reason, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 5/10/2019 X CHAIRPERSON Signed by: 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 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 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness. The regulation provided, in pertinent part, for the separation of personnel for the following reasons: (1) gives evidence of habits or traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, or misconduct; (2) unclean habits, including repeated venereal infections; (3) repeatedly committed petty offenses not warranting trial by court-martial; (4) habitual shirker; and (4) recommended for discharge by a board of medical examiners, not because of a physical or mental disability, but because he possesses a psychopathic (antisocial) personality disorder or defect, or is classified as having “no disease” by the board, and his record of service reveals frequent disciplinary actions because of infractions of regulations and commission of offenses, and/or it is clearly evident his complaints are unfounded and are made with the intent of avoiding service. The regulation also provided that when discharged because of unfitness an undesirable discharge will be furnished. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the administrative separation of enlisted personnel. a. Paragraph 3-7a provides that 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. b. Paragraph 3-7b provides that an under honorable conditions (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. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a 1. court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. 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, Boards 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. b. 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.