IN THE CASE OF: BOARD DATE: 6 December 2019 DOCKET NUMBER: AR20180005473 APPLICANT REQUESTS: The applicant requests an upgrade of his undesirable discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Undesirable Discharge Certificate * Army Review Boards Agency (ARBA) letter dated 30 August 2000 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 AR2001052826 on 10 April 2001. 2. The applicant states “prejudice, the Army was downsizing at the time”. 3. On 21 February 1956, the applicant was inducted in the Army of the United States. He completed training requirements and was awarded military occupational specialty 111.00 (Light Weapons Infantryman). 4. The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973. Records available to the Board were obtained from alternate sources. 5. The complete facts and circumstances pertaining to the applicant's discharge are not in the available records. The only record available for review is his DD Form 214 that shows that on 21 August 1957, he was discharged under the provisions of Army Regulation 635-208 (Personnel Separations – Undesirable Habits and Traits of Character), due to habits and traits resulting in misconduct. He was furnished an Undesirable Discharge Certificate. He completed 1 year, 6 months and 28 days of creditable service and had 3 days of lost time due to being absent without leave. 6. On 25 July 2000, the applicant applied to Army Discharge Review Board (ADRB) for an upgrade of his discharge. However, the ADRB was precluded from accepting his application due to its statute of limitations. 7. On 19 April 2001, the ABCMR denied his request for an upgrade of his under other than honorable conditions discharge. 8. In support of his case, the applicant provided a copy of his DD Form 214, his undesirable discharge certificate, and a letter of receipt from ARBA. 9. Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness (misconduct). The regulation provided, in pertinent part, for the separation of personnel where there was evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct. Action to separate an individual was to be taken when, in the judgement of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier. When separation for unfitness was warranted, an undesirable discharge was normally issued. 10. In reaching its determination, the Board should consider the applicant's petition, service record, and statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the reason for his separation and whether to apply clemency. In the limited records available, the Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). The regulation states 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. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. An under other than honorable conditions (UOTHC) discharge is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. 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. Army Regulation 635-208 (Personnel Separations – Undesirable Habits and Traits of Character), then in effect, set forth the policy for administrative separation for unfitness (misconduct). The regulation provided, in pertinent part, for the separation of personnel where there was evidence of an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct. Action to separate an individual was to be taken when, in the judgement of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier. When separation for unfitness was warranted, an undesirable discharge was normally issued. 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 (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. 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, 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. 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) AR20180005473 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180005473 4 ABCMR Record of Proceedings (cont) AR20180005473 3