ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 May 2019 DOCKET NUMBER: AR20180002545 APPLICANT REQUESTS: in effect, upgrade his undesirable discharge under other than honorable conditions 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 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 he was considered dishonorable because of drug abuse, but there is no evidence he ever used drugs. He maintains he has never been a drug user, nor did he drink alcohol or smoke. In effect, as a young, ignorant man from the country, he was stupid enough to go absent without leave (AWOL) his first day. He was rehabilitated because they allowed him to train, but then gave him an undesirable discharge, despite having no problems for the rest of the period; he contends he deserves an honorable character of service. He notes all of the evidence was lost because of a fire; medical data was also destroyed, but present information was sent to the Department of Veterans Affairs. 3. The applicant's complete military records are not available for review. A fire in 1973 destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC). The Army personnel records affected dated between November 1912 and January 1960. It is believed his records were lost or destroyed in that fire. Although his DD Form 214 (Report of Separation from the Armed Forces of the United States) is not available, the NPRC provided a copy of a document showing the date and authorizing order for issuing his service number, as well as a copy of his separation orders. Those documents provide information the Board can apply in evaluating his request. a. A document with the heading, "Recruiting and Induction Main Station Service Numbers Issued..." lists the applicant, along with other Soldiers, and states Special Orders (SO) Number 55, dated 24 February 1953, assigned the applicant service number 54XXXXXX. b. SO Number 98, dated 27 April 1955, indicates the applicant, along with other Soldiers, was released from assignment and duty, and given an undesirable discharge, effective 27 April 1955. The authority was Army Regulation (AR) 615-368 (Personnel Separations – Discharge – Unfitness); also authorizing the separation was a report of proceedings by a board of officers. The separation program number was "78" (Unfitness). The order indicates his rank was private/E-1. 4. Due to the unavailability of the applicant's separation packet, we are unable to determine the specific circumstance(s) that led to his discharge; however, despite the unavailability of the applicant's separation packet, and in light of the record copy of his separation orders, the Board presumes the applicant's leadership completed his separation properly. The applicant's separation orders indicate he was discharged for unfitness and his chain of command convened a board of officers to review his case prior to discharge. The applicant asserts, in effect, they discharged him because of drug abuse, but he never used drugs. While he acknowledges he was AWOL on the first day, there were no problems for the remainder of his service. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 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 available documentary evidence presented by the applicant and in the military service record, the Board concluded that the applicant failed to demonstrate and error or injustice which would warrant making a change to the record. 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. 5/16/2019 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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 615-368, in effect at the time, stated, when a Soldier demonstrated he was totally unfit for further retention in military service for any of the below listed reasons, and rehabilitation was impractical, the commander was to recommend the Soldier for discharge and require him to appear before a board of officers. a. The following were reasons for separation under this regulation: * habits or traits of character manifested by antisocial or amoral behavior, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, or misconduct * unclean habits * repeatedly committing petty offenses not warranting trial by courts-martial * habitual shirker * recommended for discharge by a medical examiner's board because of psychopathic personality disorder b. The DD Form 214 for Soldiers discharged for unfitness had to include the following remark in item 8: "AR 615-368 SPN 78." 3. AR 615-360, in effect at the time, prescribed policies and procedures for the discharge or release from active duty of enlisted personnel. Commander had the authority to issue discharge certificates reflecting the Soldier's character of service, based on the commander's evaluation of the Soldier's service and character during his overall enlistment period. a. An honorable discharge was furnished when the Soldier's record showed: * character ratings of at least "very good" * efficiency ratings of at least "excellent" * no general court-martial convictions * not more than one special court-martial conviction * subsequent honest and faithful service over a greater period could outweigh disqualifying entries in the service record b. A general discharge under honorable conditions was given to Soldiers who did not qualify for an honorable discharge. a. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. 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 on the basis of 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.