ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 July 2019 DOCKET NUMBER: AR20180002636 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement * Letter of support from The American Legion 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, in effect: a. He has never committed any crimes nor has he ever been charged with a felony. He has utmost love for his country and was very proud to be a Soldier. Other than his absent without leaves (AWOLs), his service was rated good to excellent (sic). b. His under other than honorable conditions discharge has haunted him all of his life; he is absolutely ashamed of it. He attempted to be reinstated back in 1980; however, he was told by a Veterans Administrative representative that they no longer do that. He is attempting to upgrade his discharge because following his near death experience, an exploded colon, it has reminded him that life may be short and he does not want to die with disgrace hanging over him. He wants the U.S. flag draped over his coffin. 3. The applicant provides a letter of support from The American Legion, which states in effect, the applicant has expressed countless times how much he loved his time in the army and that his biggest regret is that his family took precedence over his commitment to the Army. 1. 4. A review of the applicant's service record shows: a. He enlisted in the Regular Army on 31 October 1963. b. DD Form 493 (Extract of Military Records of Previous Convictions), dated 19 October 1964, reflects the following: * he was convicted by a Special Courts Martial on 24 March 1964 for two specifications of being absent without leave (AWOL) from 3 February 1964 to 10 February 1964 and from 11 February 1964 to 8 March 1964 * he was reduced to private/E-1, confined to hard labor for four months, forfeiture of $52.00 per month for four months * sentence was adjudged on 24 March 1964 * sentence was approved on 26 March 1964 * unexecuted portion of confinement/forfeiture of pay suspended per Special Court-Martial Order 41, dated 8 May 1964 c. Special Court-Martial Order Number 362, dated 17 October 1964, reflects the suspended unexecuted portion of the sentence to confinement and forfeiture of $52.00 per month for four months as published in Special Court-Martial Order 41, dated 8 May 1964, is vacated. d. On 20 October 1964, the applicant acknowledged receipt of the commander's intent to separate him under the provisions of Army Regulation (AR) 635-208, paragraph 3a, in the best interest of the service. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. He waived consulting legal counsel and representation by military counsel and civilian counsel at no expense to the Government. He was advised of the importance of consulting with legal counsel, and the consequences of waiving that right. He acknowledged he * may receive an undesirable discharge and that such discharge will be under conditions other than honorable * understood he may be deprived of many or all rights as a Veteran and may encounter substantial prejudice in civilian life in situations where the type of service rendered in the Armed Forces may have a bearing * he was advised he could submit any statements he desired in his own behalf. He elected not to submit any statements in his behalf e. Special Court-Martial Order Number 383, dated 28 October 1964, reflects the applicant was convicted of four specifications of being absent without leave. He was sentenced to confinement at hard labor for six months and to forfeit $55.00 per month a. for six months. The sentence was adjudged on 23 October 1964 and approved on 28 October 1964. f. The separation authority approved the applicant's request for discharge on 12 November 1964, under the provisions of AR 635-208, for unfitness, and directed that he be furnished an undesirable discharge certificate. g. He was discharged from the Army on 23 November 1964. His DD Form 214 shows he was discharged under the provisions of AR 635-208, Separation Program Number (SPN) 28B, unfitness, and his service was characterized as under other than honorable conditions. 5. Army Regulation 635-208, then in effect, set forth the basic authority for separation of enlisted personnel for unfitness. Individuals would be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warranted a general or honorable discharge, 6. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 7 May 1971. The ADRB determined the discharge was both proper and equitable and voted to deny relief. 7. The Board should consider the applicant's submissions in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions and letter of support was carefully considered. The Board considered the applicant's service record, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record. The applicant was remorseful and accepts responsibility for his actions. Based on a preponderance of evidence, the Board agreed clememcy was warranted and while the misconduct does not warrant an upgrade to an honorable discharge an Under Honorable Conditions (General) characterization is appropriate based upon the recorded misconduct. 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 reissuing him a DD Form 214 for the period ending 23 November 1964 showing his characterization of service as under honorable conditions (General). 7/10/2019 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 635-208, then in effect, set forth the basic authority for separation of enlisted personnel for unfitness. Individuals would be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warranted a general or honorable discharge, when it had been determined an individual's military record was characterized by one or more of the following: (a) frequent incidents of a discreditable nature with civil or military authorities; (b) 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; (c) drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana; (d) an established pattern for shirking; or (e) an established pattern showing dishonorable failure to pay just debts. 3. 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//