IN THE CASE OF: BOARD DATE: 17 December 2019 DOCKET NUMBER: AR20180004310 APPLICANT REQUESTS: In effect, that his under honorable conditions (general) discharge be upgraded to an honorable 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), dated 8 March 2018 * Commonwealth of Puerto Rico, Police of Puerto Rico, Negative Certificate of Penal Record * DD Form 214 (Report of Separation from the Armed Forces of the United States) for the period ending 26 November 1952 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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 he has maintained good conduct since his discharge in 1952. 3. The applicant’s military records are not available for review. A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973. It is believed that the applicant’s records were lost or destroyed in that fire. However, there were sufficient documents provided by the applicant to conduct a fair and impartial review of this case. 4. The applicant was inducted into the Army of the United States on 14 December 1950. He completed training as a light weapons infantryman. 5. The facts and circumstances surrounding the applicant's discharge are not available for review. However, his DD Form 214 indicates he was separated from service on 26 November 1952, and his reason and authority for separation is shown as "Rel to ERC SR 615-363-5 PETS," meaning he was released to the Enlisted Reserve Corps in accordance with Special Regulation 615-363-5 (Enlisted Personnel – Release from Active Duty). His service was characterized as general (under honorable conditions). His DD Form 214 shows 4 days of lost time. 6. The applicant provides a Commonwealth of Puerto Rico, Police of Puerto Rico, Negative Certificate of Penal Record showing that at the time the search of records was conducted, he had no criminal record. 7. The Board should consider the applicant's statement and provided evidence in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered his record of service, the reason for his separation and whether to apply clemency. The Board noted the applicant was released from active duty and transferred to the Enlisted Reserve Corps, indicating any misconduct in his record was not of such severity to have warranted discharging him immediately. The Board also noted his post-service record shows no evidence of criminal convictions in the Commonwealth of Puerto Rico. Based on a preponderance of evidence, the Board determined the applicant's character of service should be upgraded to honorable. 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 his DD Form 214 to show his service was characterized as honorable. 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that 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. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides that 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual. 4. Special Regulation 615-363-5, then in effect, provided for the release from active duty to Enlisted Reserve Corps prior to ETS. The purpose of the regulation was to provide administrative procedures for the release of members of the Enlisted Reserve Corps from extended active duty, including those on active duty in accordance with the Selective Service Act of 1948. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. a. 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, Boards 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. b. 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) AR20180004310 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1