ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 May 2019 DOCKET NUMBER: AR20170019008 APPLICANT REQUESTS: An upgrade to his undesirable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Character 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 military records are not available to the Board for review. A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973. It is believed his records were lost or destroyed in that fire. This case is being considered using reconstructed records, which primarily consist the certificate of neuropsychiatric evaluation on the applicant and his DD Form 214 (Report of Separation from the Armed Forces of the United States). 3. The applicant states that he was railroaded by an officer from another unit who was trying to start a fight with him and eventually accused him of not having shined boots. A commanding officer from another platoon attempted to start a fight with him and eventually said that he did not have habits or traits of character rendering retention in the service undesirable. His lieutenant was not present at the court-martial, and he was not given any warning regarding what happened. He experienced racism and prejudice and he did not have anyone to protect or help him. He wants the truth to be told and his record cleared. He has always regretted not being able to serve in the military. He hopes that someone is willing to hear the truth and help him put an extreme wrong that negatively impacted him during his life behind him. 4. The applicant provides a character statement from his nephew Mr. X___ that stated, in effect, that there are countless examples of Soldiers of color being 1. undermined, especially during the 1950s shortly after desegregation of the services. Soldiers of color were treated in a disparate manner in countless areas, from promotions to awards, and were routinely removed with little regard for their contributions in service. The applicant was not given the opportunity to defend himself at his court-martial, and he had no leadership from his unit in attendance. As a former equal opportunity officer and senior instructor for the defense equal opportunity management institute, he can’t tell how many similar cases he shared during training of discrimination in uniform and ineffective leadership. Little did he know, that his uncle had experienced the same racial travesties? His uncle is extremely ill; help them honor him by resolving this personally painful issue as soon as possible. He was discharged solely based on hearsay, and we request it be expunged from his record and he be rewarded an honorable discharge that he truly deserves. It took nearly fifty years for service members who were overlooked for the Medal of Honor to be recognized, let’s start rectifying the records of Soldiers who were wrongfully removed from Service. 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 3 October 1950. b. The complete facts and circumstances surrounding his discharge are not available for review with this case. However, his records shows a certificate of neuropsychiatric evaluation on the applicant and his DD Form 214 (Report of Separation from the Armed Forces of the United States). c. On 25 January 1954, he was evaluated by the neuropsychiatric at United State (US) Army Hospital, Munich. (1) The examiner stated that he was referred for evaluation prior to the contemplated board action to be considered for administrative separation. Statements from witnesses expected to appear before the board indicated that he has been punished repeatedly under Article 15, Uniformed Code of Military Justice (UCMJ), for missing bed check or formation. The report annotated that the applicant stated himself that he has been court-martialed twice for being absent without leave (AWOL) or breaking restrictions, but punishment has not been followed by any improvement in his behavior or attitude. (2) The psychiatric examination reflected that the applicant showed an indolent, covertly hostile young man with no evidence of anxiety, tension, depression or psychotic thought content, nor any elicited history of such in the past. His attitude was that he would prefer to remain in the Army, but there was no evidence here of any firm resolve to improve in his behavior to make that possible. (3) There was no findings of psychiatric diagnosis. The examiner stated that the applicant was so far free from mental defect, disease or derangement as to be able to (1) distinguish right from wrong, adhere to the right and conduct intelligently in his own defense in any administrative board proceedings. (4) There were no psychiatric contraindications to administrative separation from the Service under the provisions of Army Regulation 615-368 (Enlisted Personnel Discharge Unfitness) nor are there any disqualifying mental or physical defects sufficient to warrant separation under AR 600-450 (Personnel Separation for Physical Disability). d. He was discharged on 22 May 1954. His DD Form 214 shows he was discharged under the provision of AR 615-368, for habits traits of character rendering retention in the service undesirable, and his service characterization was undesirable. He completed a period of 2 years, 10 months, and 8 days of service. Item 39 of his DD Form 214 shows 482 days of lost time. 5. The Army Review Boards Agency (ARBA), by letter on 9 January 1998, informed the applicant that the statutory requirements under the Army Discharge Review Board (ADRB) appeal option prohibits processing of applications past 15 years from the date of discharge or release from active duty. They recommended that he submit his request for an appeal of his discharge to the ABCMR. 6. On February 13, 2018, by official letter, the National Personnel Records Center (NPRC) responded to our request for the official military personnel file (OMPF) for the applicant. The military records are not available to the Board for review. A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973. 7. By Army Regulation 615-368, when an individual has already demonstrated that he is totally unfit for further retention in the military service for any of the reasons indicated below, and his rehabilitation is considered impossible after repeated attempts to accomplish same have failed (except where attempts at rehabilitation are impracticable as in confirmed drug addition, homosexuals, etc., his commanding officer will report the facts to the next higher commander and recommend that the individual be required to appear before a board of officers. 8. 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 review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions and letter of support was 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. Based upon the record, 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. 5/28/2019 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 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) 615-368 (Enlisted Personnel Discharge Unfitness) in effect at the time states that when an individual has already demonstrated that he is totally unfit for further retention in the military service for any of the reasons indicated below, and his rehabilitation is considered impossible after repeated attempts to accomplish same have failed (except where attempts at rehabilitation are impracticable as in confirmed drug addition, homosexuals, etc., his commanding officer will report the facts to the next higher commander and recommend that the individual be required to appear before a board of officers. convened under the authority contained herein. a. Gives evidence of habits or traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalize, drug addition, pathological lying, homosexuality, sexual perversion, or misconduct. b. Unclean habits, including repeated venereal infections. c. Repeatedly committed petty offenses not warranting trial by court martial. d. Habitual shirker. e. When an individual is recommended for discharge by a disposition or medical board of medical examiners or other competent medical opinion, 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. 3. Army Regulation 600-450 implement the provisions of title IV of the Career Compensation Act of 1949 which provides for all uniform disposition of all members of the uniformed services found to be unfit to perform the duties of their office, rank, or grade by reason of physical disability. 4. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) currently in effect sets forth the basic authority for the separation of enlisted personnel. 1. a. Paragraph 3-7a states 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 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. 5. 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.