ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  6 June 2019

	DOCKET NUMBER:  AR20180005031


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions discharge to a general discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Certification of Military Service
* three character letters

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:

	a.  He is not the man that he was, an alcoholic, selfish, and concerned only about himself.  He sees himself as a man who has devoted a life time giving to family, friends, and the community.  He is nearing life’s end and has but one major regret in his life, his conduct while serving in the U.S. Army.  Unlike most, he does not attempt to sugar coat what happened.  He owns his past mistakes and only requests for the same sort of compassion that he had learned to give freely to others.  His wish is for an upgraded discharge to reflect the man he has become instead of the man he was.  He credits his turn around in life to his Savior, Jesus the Christ.  He personally believes that a decision to change one’s life begins with making that decision, then hanging on for the ride.  

	b.  His military records have been lost in the fire of 1977.  As those records were destroyed, he requests the Board to allow the past to also die and amend his records to reflect honorable service.  There was no available treatment for him to seek at the time for alcoholism.  In today’s Army, a Soldier receives a fair chance to admit he has a problem and work with the Army to rehabilitate himself.  He was not afforded the same option he would have received today.  Rule in his favor and grant him an upgrade.  
	c.  He served with the 3rd Armor Division from July 1955 to June 1958.  He had a bad drinking problem, but he did not realize it.  When he drank, he did stupid things.  He received an undesirable discharge 3 weeks before his expiration of term of service date of 8 July 1958.  He stopped drinking at 33 years of age and he has been 40 years sober by attending Alcoholics Anonymous.  He worked in a factory for 16 years before beginning his own business, a pallet company.  He hired many employees and was successful for 30 years.  He is married with five grown children.  He had served the Lord for 39 years.  He would like an upgrade of his discharge before he dies.  He is 77 years of age.  

3.  Counsel defers request and statements to the applicant and provides no additional evidence.

4.  The applicant's military records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed his records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record and that provided by the applicant to conduct a fair and impartial review of this case.  

5.  The applicant’s available record contains a Special Orders Number 153, issued by the U.S. Army Personnel Center, Fort Dix, NJ on 1 June 1958, announcing his discharge under the provisions of Army Regulation (AR) 635-208 (Personnel Separations – Discharge – Unfitness and Unsuitability), with Separation Program Number Code 438 (Undesirable).  The orders shows his date of discharge as 4 June 1958.

6.  The applicant provides:

	a.  A Certification of Military Service, issued on 18 February 2014, showing he served in the Regular Army from 8 July 1953 until his discharge on 4 June 1958.  The certificate also show his service was undesirable.

	b.  Three character letters, dated between 11 May and 18 June 2014, wherein the individuals attested that the applicant was a good father, husband, citizen, and a successful businessman and he led a positive and productive life, raised a family, and embraced faith.

7.  By regulation (AR 635-208), individuals will be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warrant a general or honorable discharge.

8.  In reaching its determination, the Board can consider the applicants’ petition in his service record in accordance with 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 the type of misconduct, the character evidence submitted by the applicant to show he has learned from those events leading to his discharge, as well as the passage of time, the Board concluded that granting clemency by upgrading the characterization to Under Honorable Conditions (General) was appropriate.

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 (AR) 635-208 (Personnel Separations – Discharge – Unfitness and Unsuitability), in effect at the time, established policy and provided procedures and guidance for the prompt elimination of enlisted personnel who were determined to be unfit for further military service.  Individuals would be discharged by reason of unfitness with an Undesirable Discharge Certificate, unless the particular circumstances in a given case warranted a general or honorable discharge.

3.  AR 635-5 (Administrative Separation Procedures and Forms), in effect at the time, showed that Separation Program Number 438 was authorized for separations under the provisions of AR 635-208 with the following associated narrative reason of “Undesirable.” 

4.  AR 635-200 (Active Duty Enlisted Separations), currently in effect, provides the policy and procedures for the separation of enlisted personnel.  The regulation states in:

	a.  Paragraph 3-7a (Honorable discharge) – an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier’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.  Paragraph 3-7b (General discharge) – 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.

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 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.


ABCMR Record of Proceedings (cont)	 AR20180005031


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