ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  24 September 2019

	DOCKET NUMBER:  AR20170018652

APPLICANT REQUESTS:  an upgrade of his undesirable discharge to general under honorable condition.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Statement in Support of Claim, XX, 28 August 2011
* Statement in Support of Claim, XX, 3 August 2011
* Statement in Support of Claim, XX, 5 August 2011
* Statement in Support of Claim, XX, 12 December 2011
* Statement in Support of Claim, XX, 20 January 2012
* Orangeburg County Sheriff’s Office Criminal Records Check
* Statement in Support of Claim, XX, 3 February 2012
* Statement in Support of Claim, XX
* Statement in Support of Claim, XX

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's military records are not available for review.  A fire destroyed approximately 18 million service members' records at the NPRC, St. Louis, MO, in 1973.  It is believed his records were lost or destroyed in that fire.  This case is being considered using the records that were available from the National Personnel Records Center and the documents provided by the applicant.  

3.  The applicant states he served good and faithfully during his entire period of service for active duty.  As a young soldier he had some immature moments and made poor decisions, for which he was disciplined for.  He made a false statement to his company commander and he was discharged for it.  Since then, he has matured, been saved as a Christian and turned his life over to the Lord.  He has also become an ordained minister for 40 plus years in his community.  

4.  The applicant provides:

	a.  A statement in support of his claim from XX, dated 3 August 2011, which states the applicant has worked for him for over 20 years and exuded a positive attitude.  He has a great work performance and has worked well with others.  He recommends the applicant to any company that is looking for an above average employee.

	b.  A statement in support of claim from XX, dated 5 August 2011, which states it is a pleasure to have worked with the applicant for over 20 years.  He has always been trustworthy, loyal, helpful, friendly courteous, kind, obedient, cheerful, thrifty, dependable, humble and above all, reverent.  At work he was called preacher, because he was a minister over the years.  XX is thankful to the Lord to have worked with, “Preacher,” and he calls him his friend.

	c.  A statement in support of claim from XX, dated 28 August 2011, which states he has known the applicant for over 40 years and is one of his closest friends.  Their families have been friends since their children were small.  He is a great father to his children and grandchildren and he will assist his family whenever they need him.  .He makes repairs to their homes, assists with car repairs or whatever else they may need.  He is an honest, hardworking individual and as a minister he continues to work as well as be a full minister to the various churches he has pastored over the many years.  He cares about his congregation and when his members get sick, he visits them in the hospital or at a home.  He is always available when his members need him.  XX describes the applicant as a devout Christian, a devoted family man and a true friend.

	d.  A statement from XX, dated 12 December 2011, acknowledges the applicant as a preacher in 1985 and he has worked for him in the past as a Foreman.  He is a great person, worker, friend, Pastor, father and husband. He has a very caring personality.  They have had many talks throughout the years and have known and helped each many times at work.  XX states he is blessed to have met a friend with such compassion and love for life, people, and most of all the Lord. 

	e.  A statement from XX, dated 20 January 2012, which states she and the applicant have known each other for 10 to 11 years.  He is known as a parishioner in church and became their Interim Pastor.  He was appointed Senior Pastor of Cornerstone Church of God and this was with the unanimous approval from their congregation.  He has been very candid about his rebellious younger years, and his less than exemplary behavior while serving in the military.  He demonstrates a life of sincerity, honesty, impeccable integrity and humility, a life of a "Born Again Christian."  He has been living a faithful life for many years, is a faithful provider and partner to his spouse for over 50 years.  He is a good father, caring Shepard to his church members and additionally, she and her husband are grateful to call him their friend.  Finally, it is without reservation that they testify to the sterling character of the applicant and recommend that he receives reevaluation of his worthiness to receive recognition and benefits which may be available to him.  He is a living testament to the fact that people can change and he has changed and is worthy of a second consideration.  

	f.  A letter form Orangeburg County Sheriff’s Office, dated 1 February 2012, which states the applicant has had a criminal background check through their agency and it revealed no convictional data on him.

	g.  A statement in support from XX, dated 3 February 2012 stating he has pastored in the same area in South Carolina and had a good relationship with the applicant.  He pastored churches in Springfield, Branchville Elgin, Pageland and Orangeburg and had been a good friend and a man of Godly character.

	h.  A statement in support of his claim from XX, which states we all do things in life when we are young and we have to pay for it.  The applicant has made mistakes while serving in the Army and he has tried and failed to get his dishonorable discharge changed from the Army.  He has paid the price for his mistake and has served pastoral work as a minister for many years.  He is always present to help anyway he can and is a very dedicated man of God.  They have known him for more than 40 years, he is a devoted family man, upstanding in the community, taxpayer and a friend to everyone in need.  He has been a true neighbor and friend to their family for many years and clearing this up would mean a lot to him. 

	i.  A statement in support of his claim from XX, which states he has known the applicant since he was released from the US Army.  He has turned his life completely around and has accepted the Lord as his savior.  He is very active in his church and now he is a full time pastor.  He comes from a very stable Christian family and to his knowledge he has been a model citizen.  He highly recommends him as a number one person that you can always count on.  

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

	a.  Having prior service in the U.S. Army National Guard, he enlisted on 8 July 1957, in the Regular Army.

	b.  Special Orders #192 show the applicant discharged from the South Carolina Army National Guard (SCARNG) and concurrently from the United States Army Reserves (USAR) with an Honorable Discharge.

	c.  On 12 November 1959, the applicant was convicted by a special court-martial for one specification of willfully disobeying a lawful order from his superior noncommissioned officer (NCO) on or about 16 October 1959, one specification of being disrespectful towards a NCO on or about 16 October 1959, one specification of breaking restriction on or about 16 October 1959 and one specification of being drunk and disorderly in a public place on or about 16 October 1959.  The court sentenced him to confinement for 6 months and forfeiture of two-thirds of pay and allowances per month for six months. 

	d.  On 12 November 1959, Special Court-Martial Order Number 79, issued by Headquarters, 3rd Battle Group, 6th Infantry states the sentence is approved and will be duly executed. 

     e.  According NA Form (National Archives and Records Administration) Form 13038, it shows the applicant was discharged on 17 December 1959 and his service was terminated by an undesirable discharge.

6.  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.

7.  The Board should 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, the Board determined relief was warranted.  The Board considered his petition and his available service record in accordance with the published equity, injustice, or clemency determination guidance.  The Board also considered his letters of support, service in the ARNG, and the length of time since he had been separated from military service.  Based upon the demonstrated growth and the passage of time, all Board members recommended granting clemency by upgrading the applicant’s characterization of service to Under Honorable Conditions (General).  

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 issuing him a Certification of Service reflecting an Under Honorable Conditions (General) characterization of service.

	 
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) 635-200 (Personnel Separations – Enlisted Soldiers), in effect at the time, sets forth the basic authority 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 member’s service generally has met the standards of the 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 member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

	c.  Paragraph 3-7c (Under Other Than Honorable Conditions) states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service.

	d.  Paragraph 3-11 (Bad Conduct Discharge) states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

	e.  Paragraph 3-9 (Uncharacterized Separations) states a separation will be described as an entry level separation if processing is initiated while a member is in entry level status, except when characterization under other than honorable conditions is authorized.

3.  Army Regulation (AR) 635-208 (Discharge – Unfitness and Unsuitability), 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

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 form 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 the 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.  


ABCMR Record of Proceedings (cont)	 AR20170018652


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