ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    11 April 2019

	DOCKET NUMBER:  AR20180004683


APPLICANT REQUESTS:  The applicant requests his discharge under other than honorable conditions (UOTHC) be upgraded to an Honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Letter from X_
* Undesirable Discharge Certificate
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140004272 on 23 October 2014.

2.  The applicant states:

	a.  He received an under other than honorable discharge for not saying "sir" and not saluting an officer who was to his rear.  He had 2 years, 8 months, and 27 days of service.  He had 3 months and 2 days left of his honorable service.  He should have an honorable discharge.  

	b.  He was a private first class, in a line company in Germany, working clean-up crew.  An officer came up behind him and said "Soldier."  The applicant did not turn-around to see who was talking.  He kept on with the detail, picking up trash.  When the applicant saw it was an officer, he said "sir" and rendered a salute.  

3.  On 7 July 1955, at the age of 17 years old, the applicant enlisted in the Regular Army.  He served in various overseas and stateside assignments.

4.  His service record shows he received "excellent" or "very good" ratings for his service from 7 July 1955 to 22 September 1956 and a "fair" rating from 24 March 1957 to 14 November 1957.

5.  His unit punishment record shows he accepted nonjudicial punishment (NJP) on:

* 8 July 1957, for violating the pass regulation
* 18 October 1957, for being absent without leave (AWOL) from on or about 18 October 1957 to on or about 19 October 1957 (AWOL 1 day)
* 19 December 1957, for being absent from his appointed place of duty at the prescribed time
* 8 January 1958, for being AWOL from on or about 4 January 1958 to date unknown; however, he accepted the NJP on 8 January 1956 (AWOL between 1 to 4 days)

6.  The record contains two statements regarding the applicant’s duty performance:

	a.  Sergeant First Class X_ stated the applicant was transferred from one section to another because of unsatisfactory performance.  After the applicant was transferred, he had to be told every minor detail of what to do and he was reported for sleeping on duty on two or three occasions.

	b.  Master Sergeant X_ stated the applicant needed very close supervision on his job.  He found the applicant sleeping on the job on two occasions; having conversations with other Soldiers outside of his place of duty; and having a sloppy appearance on several occasions.

7.  The applicant underwent a medical examination which stated there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels. 

8.  On 21 February 1958, the applicant was notified by his immediate commander that a board of officers would convene under the provisions of Army Regulation (AR) 635-208 (Personnel Separations - Discharge – Undesirable Habits and Traits of Character) to determine if he should be discharged for undesirable habits or traits of character, or due to unsuitability, or if he should be retained on active duty.

9.  On 24 February 1958, the board convened and recommended that the applicant be discharged under the provisions of AR 635-208, for undesirable habits or traits of character.  On 13 March 1958, the Adjutant General signed for approving authority, approving the board’s recommendation to separate the applicant under AR 635-208, for undesirable habits or traits of character, and directed the issuance of an Undesirable Discharge Certificate.

10.  On 2 April 1958, the applicant was discharged.  He was discharged with a discharge under other than honorable conditions.  He completed 2 years, 8 months, and 27 days total active service.  His DD Form 214 does not reflect any days of lost time.

11.  In 2013, the applicant applied to the ABCMR to upgrade his discharge.  On 24 October 2014, the ABCMR denied his request.

12.  The applicant provides a letter from X_, which states the applicant has been a member of his church for over 20 years.  He is a member in good standing and a faithful servant in the ministry of teaching as well as ministry of worship.

13.  The applicant contends he had 2 years, 8 months, and 27 days of service at the time of his discharge.  He had only 3 months and 2 days left of his honorable service; therefore, he should have received an honorable discharge.  His record shows the applicant enlisted at the age of 17, went AWOL on 2 occasions (total between 1 to 5 days), and accepted 4 NJPs.

14.  AR 635-208 states individuals would be discharged for having undesirable habits or traits of character.  When separation is for undesirable habits and traits of character, an Undesirable Discharge Certificate, under other than honorable conditions, would be issued.

15.  AR 635-200, currently in effect, states in a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case.  

16.  In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency.


BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that partial relief was warranted.  Based upon the misconduct which resulted in the discharge, the age of the applicant at the time and the passage of time, the Board concluded that clemency was warranted by upgrading the applicant’s characterization of service to Under Honorable Conditions (General).  


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20140004272, dated 24 October 2014.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by voiding his DD Form 214 for period ending 2 April 1968 and reissuing a new DD Form 214, which reflects an under honorable conditions (general) character of service.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his character of service to an 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.  AR 635-208 (Personnel Separations Discharge Undesirable Habits and Traits of Character), in effect at the time, set forth the basic authority for separation of enlisted personnel having undesirable habits and traits of character.  

	a.  Recommendation for discharge because of undesirability would be made in the case of an enlisted person who:

		(1)  Gave evidence of habits and traits of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct.

		(2)  Possessed unclean habits, including repeated venereal infections.

		(3)  Repeatedly committed petty offenses not warranting trial by court-martial.

		(4)  Was a habitual shirker.

		(5)  Was recommended for discharge by a disposition or other board of medical officers because he possessed a psychopathic (anti-social) personality disorder or defect, or was classified as having "no disease" by the board, and his record of service revealed frequent disciplinary actions because of infractions of regulations and commission of offenses, or it was clearly evident his complaints were unfounded and were made with the intent of avoiding service.

		(6)  Demonstrated behavior, participated in activities, or associations which tended to show that he was not reliable or trustworthy.  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  

	b.  When separation is for undesirable habits and traits of character, an Undesirable Discharge Certificate would be issued.  
	c.  Upon determination that an enlisted person is to be discharged from the service with an undesirable discharge under the provisions of these regulations, the authority accomplishing the discharge will, if the individual concerned is in a grade above E-1, automatically reduce such individual to grade E-1.

2.  AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, governs the policies and procedures 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.

	c.  In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case.

3.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  

	a.  Paragraph 2-9 contains guidance on the burden of proof.  It states the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	b.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  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 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 the applicant.

ABCMR Record of Proceedings (cont)	 AR20180004683


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