ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF: 
	BOARD DATE:  3 June 2019

	DOCKET NUMBER:  AR20180000971


APPLICANT REQUESTS:  an upgrade of his under honorable conditions (general) 
discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  
DD Form 149 (Application for Correction of Military Record).

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 there is no injustice, he would like it changed before he dies so 
his grandchildren would know he was honorable.  Please change before he dies.

3.  A review of the applicant’s service records shows:

   a.  He enlisted in the Regular Army on 3 September 1959.

   b.  He served with the 128th Evacuation Hospital in Germany from 1 February 1960 
to 14 April 1961.

   c.  On 26 January 1961, the commander completed AE (Army Europe) Form 3133 
(Unit Commander’s Report for Psychiatric Examination) due to an incident of larceny 
and false official statement.  He noted that the applicant was withdrawn and affected 
upon his return from emergency leave due to his stepfather’s death on or about 20 July 
1960.

   d.  On that same date his immediate commander drafted a narrative of the incidents 
in chronological order of unit punishment on record that led to the applicant’s charges 
for stealing two tires and for making false sworn statements:

*	on 20 September 1960, pass privilege suspended for not knowing chain of 
command on guard mount
*	on 24 September 1960, improperly marking on clothing during inspection
*	on 25 November 1960, receiving traffic citation from German police for 
faulty equipment
*	on 19 December 1960, absent without leave (AWOL), missed bed-check
*	on 20 December 1960, refused to do extra duty
*	on 11 January 1961, AWOL pass violation

	e.  The applicant acknowledged receipt of the allegations.  He elected not to submit 
a statement on his behalf.

	f.  On 28 January 1961, he was convicted by a special court-martial of one 
specification of wrongfully appropriating a wheel and tire and one specification of 
wrongfully making a false official statement.  The court sentenced him to confinement 
for 6 months, forfeiture of $60.00 pay per month or 6 months, and reduction to E-1.  The 
convening authority approved the sentence on 20 January 1961.

   g.  On 30 January 1961, his psychiatric evaluation AE Form 3087 (Certificate of 
Psychiatric Examination) revealed a diagnosis of passive aggressive reaction.  The 
applicant presented a passively hostile stubborn and uncooperative attitude.  He was 
cleared to understand and participate in board proceedings.  The recommendation was 
to separate administratively under the provisions of Army Regulation (AR) 635-209 
(Personnel Separations – Unsuitability) as unsuitable.

   h.  On 22 March 1961, the applicant, waived his right to legal counsel and was 
advised of the commander’s intent to eliminate him under the provisions of AR 635-209 
(Personnel Separations – Unsuitability).  He waived a hearing before a board of officers 
and did not submit any statements on his behalf.

   i.  On 23 March 1961, his commander recommended discharge form the military 
service under the provisions of AR 635-209.

   j.  On 31 March 1961, he was convicted by a summary court-martial of two 
specifications of being absent from his unit on 26 March 1961 and on 28 March 1961.  
The court sentenced him to confinement at hard labor for 1 month.  The convening 
authority approved the sentence on 20 January 1961. 

   k.  On 3 April 1961, consistent with the chain of command recommendation, the 
separation authority approved the applicant's discharge under the provisions of AR   
635-209, Separation Program Number (SPN) 46a.  He was furnished a General 
Discharge Certificate.

   l.  On 25 April 1961, he was discharged from active duty with an under honorable 
conditions characterization of service.  His DD Form 214 (Armed Forces of the United 
States Report of Transfer or Discharge) shows he completed 1 year, months, and 23 
days of active service.

4.  By regulation, action would be taken to discharge an individual for unsuitability only 
when, in the commander's opinion, it was clearly established that the individual was 
unlikely to develop sufficiently to participate in further military training and/or become a 
satisfactory Soldier, or the individual's psychiatric or physical condition was such as to 
not warrant discharge for disability.

5.  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, to include the DoD guidance on liberal 
consideration when reviewing discharge upgrade requests, the Board determined there 
is insufficient evidence to grant relief.  The applicant’s contentions were carefully 
considered, but based upon the criminal nature of some of the misconduct, as well as a 
pattern of misconduct that extended over a lengthy period of time, the Board agreed 
that granting clemency was not warranted.   

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.  AR 635-209 (Personnel Separations - Unsuitability) in effect at the time, set forth the 
policy and prescribed procedures for eliminating enlisted personnel for unsuitability.  
Action would be taken to discharge an individual for unsuitability only when, in the 
commander's opinion, it was clearly established that the individual was unlikely to 
develop sufficiently to participate in further military training and/or become a satisfactory 
Soldier or the individual's psychiatric or physical condition was such as to not warrant 
discharge for disability.  Evaluation by a medical officer was required and, when 
psychiatric indications were involved, the medical officer must have been a psychiatrist, 
if one was available.  A general or an honorable discharge was considered appropriate.  
Unsuitability included:

*	inaptitude
*	character and behavior disorders
*	disorders of intelligence and transient personality disorders due to acute or 
special stress
*	apathy (lack of appropriate interest), defective attitudes, and inability to expend 
effort constructively
*	enuresis
*	chronic alcoholism
*	class III homosexuality (evidenced homosexual tendencies, desires, or interest, 
but was without overt homosexual acts)

3.  Appendix A, Separation Program Number (SPN) and Authority Governing 
Separations) of AR 635-5 (Separation Documents), in effect at the time, provided for an 
SPN and corresponding reason for separation/discharge.  The SPN (later renamed 
Separation Program Designator codes) are three-character alphabetic combinations 
which identify reasons for and types of separation from active duty.  The SPN of "46A" 
was the SPN assigned to Soldiers discharged for unsuitability due to character and 
behavior disorders.

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.


ABCMR Record of Proceedings (cont)	 AR20180000971

2

1