ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 18 October 2019 DOCKET NUMBER: AR20180001334 APPLICANT REQUESTS: upgrade of his undesirable character of service to Honorable. 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 (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, in effect, he would like an upgrade of his undesirable discharge received due to his stupidity at the end of his term, to Honorable after 70 years. The error of his ways was the cause of the discharge; the Army was just, he was not. He later realized he took bad advice and should have known better. 3. A review of the applicant’s service record shows: a. On 20 April 1946, he was inducted into the Army of the United States. b. On 24 April 1946, he was honorably discharged. c. On 25 April 1946, he enlisted in the Regular Army. d. On 7 Nov 1946, he was transferred to the Overseas Replacement Depot. e. On 13 October 1948, a letter from the Adjutant General to applicant’s commander was sent to furnish the names of organizations with which the applicant served. f. On 26 January 1949, criminal investigation report of larceny (petty and grand) shows on 1 December 1948, the applicant took from the pockets and billfolds the sum of $162 from members of the unit. On 16 January 1949, he took from the pockets and billfolds of members of a unit a combined sum of $37. He was confined in the post stockade on 18 January 1949. g. In the applicant’s sworn statement, 25 January 1949, he was advised of the nature of the investigation and had 24th Article of War read and explained to him, he testified that he: * fully understood the nature of the investigation, * understood a statement was not required and any statement at all regarding the offense he made must be voluntarily and may be used against him as evidence in a trial by court martial. h. His immediate commander’s sworn witness statement, in effect, stated: * had instituted a request to discharge the applicant for continuous manifestation of kleptomaniacal activity * he had him tried by Special Court for stealing from other Soldiers in different locations. * every attempt at rehabilitation failed * applicant was tried by court martial for failing to report for duty * applicant could not be relied on nor could he be expected to Soldier given another change or transferred to another unit * the commander would not recruit the applicant in his unit under combat conditions i. Multiple witness’ sworn statements in effect, state the applicant went to multiple areas at multiple times and money was found missing after his visits. j. In a letter, the applicant voluntarily requested discharge and stated in effect: * he was sorry for having brought a bad reputation to his former unit * he had never been in this sort of trouble and he didn’t know what possessed him to do such a crime * he felt he should be relieved from active duty with the United States Army because he would never be trusted by any one again because such a crime would always be hanging over him * he did not want to be sent to another outfit in the United States Army * when he was released he would never be any use to another outfit * he wished to be recommended for a for 615-369 WD AGO (War Department Adjutant General’s Office-US Army Enlisted Discharge Documant) * he believed it would be for the convenience of the Government and himself k. Dated 17 February 1949 –in effect, in the report of investigation, his commander recommended that the case be brought to trial before a general court martial since at the time the case was not a strong one due to there being possible grounds for defense counsel to render the applicant’s confession inadmissible before the count on the grounds of undue persuasion and bias. l. Dated 28 January 1949, special court martial number 12 shows: * specification the applicant, on or about, 16 January 1949 feloniously took, stole and carried away $17, $5 $2 and $4 lawful money of the United States, property of Soldiers, guilty * his sentence was reduction to grade of recruit, confined to hard labor at such a place the reviewing authority might direct for six months and forfeiture $50 of his pay per month for six months (no previous convictions were considered) * sentence was adjudged on 27 January 1949 * sentence was approved and duly executed * the post stockade was designated place of confinement m. Dated 29 January 1949, special orders 24 extract the board acted upon such cases that involved the discharge of enlisted man who give evidence of unfitness (undesirable habits or traits of character) of those giving evidence of inaptitude or unsuitability (ineptness, lack of required degree of adaptability or enuresis) as may be properly referred to it. n. Dated 1 February 1949, charge sheet shows: * The applicant, on or about, 1 December 1948 feloniously took, stole, and carried away about $67, $38, $10, $10, $1 lawful money of the United States from Soldiers (some illegible) for a total of $162 o. Record of previous convictions shows: * He did steal and carry away monies (from) men in his organization * Was reduced to grade of recruit, confined to hard labor for six months and forfeiture of $50 p. Memorandum dated 4 and 5 February 1949 show commander’s endorsements for general court martial. q. Dated 10 February 1949, certificate from chief neuropsychiatric service stated he thoroughly examined the applicant and his relevant findings and conclusions were: * Diagnosis-antisocial personality, chronic, mild manifested by excessive alcoholic intake and repeated violation of regulations. (Larceny). Predisposition: Unknown. Stress: Normal stresses of Military life. Incapacity: Marked impairment * Recommendation: Administrative discharge under the provisions of Army Regulation 615-368 or 369 was indicated in this case. Apparently, while under the influence of alcohol, the Soldier steals and then does not have whatever it takes to return the stolen property. He has no history of marked antisocial traits prior to Military service. Refusal to refrain from alcohol on his part indicated a certain deliberateness about his actions which under study were not felt to be psychotic. * No basis for discharge under the provisions of AR 615-361 (now defunct regulation-Reason and Authority for Separation-Separation of Enlisted Persons) (CDD) (Certificate of Disability for Discharge) existed r. Dated 17 February 1949, investigating officer’s report shows: * the applicant was informed of the nature of the charges alleged against him * the name of his accuser and the witnesses * the charges were to be investigated * his right to request to have counsel provided by himself or the military * his right to cross examine all available witnesses against him * to present anything he might desire on his own behalf * his right to have the investigating officer examine available witnesses requested by him * his right to make any statement regarding the offense of which he was accused or being investigated * the statement he might make be used against him * the applicant request counsel and counsel was present * the investigating officer examined 3 witnesses, show written statements, documents, evidence * after being advised regarding his rights to make a statement or remain silent the applicant remained silent s. Dated 17 February 1949, Summary of witness testimonies * the applicant’s former first sergeant in Italy had strong reason to believe the applicant was “mixed up in” two cases since he had be an investigator, provost marshal’s office, at the applicant’s previous duty station * another Soldier testified he knew the applicant and that a confession was obtained and that there was no persuasion, promises or threats used to obtain it * multiple Soldiers discovered various amounts of cash missing ranging in value from $1 to $100 after the applicant was in there areas t. Dated 18 February 1949, Summary of witness testimony: * no undue persuasion or coercion was used to obtain the applicant’s confession and that the applicant confessed freely and fully * the applicant took the investigating Soldier on a tour of the area to point out the exact location of his activities u. Dated 24 February 1949, commander’s letter subject Discharge of Enlisted Man under the provisions of AR 615-368 (now defunct regulation-Separation/Elimination of Enlisted personnel with undesirable habits and traits of character/misconduct) it was requested that the applicant be discharged pertinent to the information submitted: * the applicant was believed to be a kleptomaniac, who had been tried and convicted for theft and confessed that he committed other crimes of this character * the fact the confession was obtained in a doubtful manner, it was felt that the confession could not be used as evidence for a court martial therefore, he was not tried on this count. * The commander attempted to make a satisfactory Soldier of the applicant by sending him to a school of his own choice (radar school) and did not apply himself and was brought to the commander’s attention for stealing shortly after being placed in the school * character and efficiency rating poor v. Dated 16 March 1949, board of officers convened to determine whether the applicant should be discharged from the military prior to the expiration of term of enlistment. The applicant did not desire counsel. w. Dated 18 March 1949, report of proceedings of board of officers: * findings gives evidence of habits other than those indicating discharge for physical or mental conditions as provided for in 635-361 which render retention in the service undesirable * recommendation discharge from the service undesirable discharge be furnished x. Dated 30 March 1949, and discharge of enlisted man action completed. y. Dated 5 April 1949, report of board of officers approved request separation authority discharge the applicant under the provisions of AR 615-368 and discharge certificate (WD AGO Form 53-59 Undesirable) be furnished. z. Dated 7 and 11 April 1949, report of board of officers compliance with indorsements. aa. Dated 20 April 1949, special court martial orders 15 the unexecuted portion of the sentence adjudged against the applicant by special court martial promulgated in special court martial orders number 12 on 28 January was remitted. bb. Dated 20 April 1949, clearance certificate (enlisted personnel) shows the applicant’s grade recruit, facility post prison character poor, and efficiency unknown. cc. Army of the United States Separation qualification Record shows the applicant’s date of entry into active service 25 April 1946, and date of separation 20 April 1949. dd. WD AGO Form 53-59 (Enlisted Record and Report of Separation Undesirable Discharge) shows and undesirable discharge, date of separation 20 April 1949, foreign service 3 years and 17 days (mostly illegible). ee. Memorandum dated 23 January 1951, letter state prison of southern Michigan regarding fingerprints examined and found to be identical to those of the applicant. It recounts the applicant’s military history, in effect, the applicant was inducted, discharged honorably discharged, enlisted in the Regular Army, served outside the continental limits of the United States. He was tried and found guilty before a special court martial for theft of monies from men in his organization and sentenced to the grade of recruit, confined to hard labor for six months and forfeited $50 each month for like period. ff. Dated 11 February 1951, applicant letter requested decorations and awards due him. gg. 26 July 1951 service record shows in effect, court martial, company punishments, discharged (undesirable), appeals for honorable discharge to permit reentry into Army, assignment locations, immediate commander believed he was a kleptomaniac, tried and convicted, confessed he committed other crimes that character, and antisocial personality. hh. Dated 13 August 1951, letter from the adjutant general regarding the applicant’s request for review of discharge and waiver request for the purpose of reenlistment in the regular Army. After careful consideration, it was found that the applicant did not meet the current requirements for enlistment in the regular army and that is request for waiver was not favorable considered. His application for review of discharge was forwarded to the Army Discharge Review board, Department of the Army for consideration. ii. 23 August 1951, review of discharge or separation shows after careful consideration of the evidence of record and testimony of applicants counsel and witnesses, the Army Discharge Review Board (ADRB) concluded that the applicant was properly discharged. Appeal denied. jj. Dated 11 September 1951, letter shows the ADRB reviewed the type and nature of his separation from service and after careful review of the entire case, the Secretary of the Army directed the applicant’s request for change in type or nature of separation not be favorable considered. kk. Dated 9 October 1952, letter from adjutant general referenced letter regarding decorations and awards, that was not the policy of the Department of the Army to issue decorations or service medals to an individual while confined in a penal institution and suggested upon release from confinement the applicant renew his request to receive consideration at that time. ll. Dated 8 December 1981, letter ADRB states, after care consideration of the applicant’s military records and all other available evidence, it determined he was properly discharged and the Secretary of the Army directed that he be advised that his request for a change in the type and nature of his discharge had been denied. Although, his case was denied by ABRB he could apply to the Army Board for Correction of Military records. That Board is not bound by the decision of the ADRB. 4. In a memorandum from the Army Discharge Review Board (ARDB) dated 8 December 1981, it shows the applicant received a decision. The memorandum stated, the Secretary of the Army directed that the applicant be advised that his request for a change in the type and nature of his discharge had been denied. 5. By regulation, discharges under the provision of Army Regulation 615-368 became the direct descendant of section VIII and dealt with "habits and traits of character" which serve to render retention in the service undesirable and those who were "disqualified physically or in character through misconduct." Individuals discharged under this regulation received a blue. 6. Under the provisions of section II, AR 615-360, and later, AR 615-361, issued on 4 November 1944, the neuropsychiatrist was frequently appointed as a member of the board of medical officers generally referred to as the "CDD (certificate of disability for discharge) Board." 7. 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 relief is not warranted. The applicant’s contentions were 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. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. He was remorseful with his application. However, based upon the multiple criminal offenses of a criminal nature, against fellow service members, 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. 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 (AR) 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority 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. 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. Army Regulation 615-368 became the direct descendant of section VIII and dealt with "habits and traits of character" which serve to render retention in the service undesirable and those who were "disqualified physically or in character through misconduct." Individuals discharged under this regulation received a blue discharge, unless the reviewing authority determined that an honorable discharge was to be given under AR 615-369. 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180001334 10 1