ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  23 July 2019

	DOCKET NUMBER:  AR20180003962


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application For The Review of Discharge From the Armed Forces of the United States)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service in the Army National Guard of Tennessee)
* NGB Form 23 (National Guard Bureau Retirement Credits Record)
* Office of Congressman Phil Roe – Congressional Casework Authorization

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 he wishes he could reenter the military and change his behavior.  He believes the situation would have been different and he would be an outstanding soldier.

3.  The applicant provides:

	a.  NGB Form 22 which show the applicant was honorably discharged from the Tennessee National Guard on 1 June 1959.

	b.  NGB Form 23 which provides the applicant’s record of retirement credits while serving in the Army National Guard.

	c.  Congressional Casework Authorization from the Office of Congressman Phil Roe, dated 7 March 2018, from the applicant requesting assistance from the congressman to help change the characterization of his discharge.

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

	a.  Having prior service, he enlisted in the Regular Army on 18 August 1959.

	b.  Summary court-martial charges were preferred on 31 October 1960.  His 
DD Form 458 (Charge Sheet) shows he was charged with three specifications of failure to go to an appointed place of duty.  The court sentenced him to hard labor without confinement for 45 days and forfeiture of $60 pay.

	c.  Summary court-martial charges were preferred on 13 December 1960.  His 
DD Form 458 (Charge Sheet) indicates he was charged with:

* one specification of failure to go at a prescribed time to an appointed place of duty
* one specification of breaking restriction

	d.  Summary court-martial charges were preferred on 16 May 1961.  His 
DD Form 458 (Charge Sheet) shows he was charged with being absent without leave from 3 May 1961 to 9 May 1961.  .

	e.  Summary court-martial charges were preferred on 23 June 1961.  His 
DD Form 458 (Charge Sheet) shows he was charged with two specifications of failure to go at a prescribed time to an appointed place of duty.  

	f.  It appears the applicant was notified by his immediate commander of his intent to separate him on or around 26 May 1961, subsequently, he waived his right to legal counsel, a hearing by a board of officers and elected not submit a statement on his own behalf.

	g.  On 19 June 1961, the applicant’s immediate commander recommended elimination under the provisions of Army Regulation (AR) 635-208 (Personnel Separations – Discharge, Unfitness), in effect at the time, for unfitness due to frequent involvement in incidents of a discreditable nature with military authorities and an indifferent attitude toward military service.

	h.  On 28 June 1961, the separation authority approved the discharge and ordered the issuance of an Undesirable Discharge Certificate under the provisions of AR 635-208, Unfitness.

	i.  On 12 July 1961, he was discharged from active duty.  His DD Form 214 shows he was discharged with an under other than honorable conditions characterization of service, under the provisions of AR 635-209 for Unfitness.  He completed 1 year, 
10 months and 19 days of net service during this period with 6 days lost time.  

5.  The applicant applied to the Army Discharge Review Board for an upgrade of his discharge, which was denied by the Board on 13 April 1973.  The Board enclosed a 
DD Form 215 (Correction to DD Form 214, Armed Forces of the United States Report of Transfer or Discharge), which corrected Item 11c to read: AR 635-208 SPN 28B PETS.

6.  By regulation (AR 635-208), action will be taken for individuals when it is clearly established that despite reasonable attempts to rehabilitate or develop the individual as a satisfactory Soldier, further effort is unlikely to succeed.  An Undesirable Discharge Certificate will normally be furnished to an individual who is discharged by reason of unfitness.

7.  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 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 warranted.   Based upon a review of the documentary evidence in the case, the Board concluded that the applicant’s misconduct was partially caused as a result of the command unfairly punishing the applicant for prior misconduct.  Thus, the Board concluded there was an injustice and recommended that the characterization of service for the applicant’s separation be upgraded to Under Honorable Conditions (General).

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 the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General).
	 
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 635-200 (Personnel Separations – General Provisions for Discharge and Release), in effect at the time, provides for the discharge of enlisted personnel upon expiration of term of enlistment.

	a.  Paragraph 9 (Honorable Discharge) states an honorable discharge is a separation from the Army with honor.  The issuance of an honorable discharge is conditioned upon proper military behavior and proficient and industrious performance of duty, giving due regard to the rank or grade held and the capabilities of the individual concerned.

	b.  Paragraph 10 (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.

3.  Army Regulation 635-208 (Personnel Separations – Discharge, Unfitness), in effect at the time, establishes policy and provides procedures and guidance for the prompt elimination of enlisted personnel who are determined to be unfit for further military service. Action will be taken for individuals when it is clearly established that despite reasonable attempts to rehabilitate or develop the individual as a satisfactory Soldier, further effort is unlikely to succeed.  An Undesirable Discharge Certificate will normally be furnished to an individual who is discharged by reason of unfitness.

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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

ABCMR Record of Proceedings (cont)	 AR20180003962


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