ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  7 August 2019

	DOCKET NUMBER:  AR20180006974


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record)

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 was heavily discriminated against, because of his association with the African American race.  He was friends with an African American Soldier, who introduced him to a female African American girl who he started dating while at Fort Ord. 

3.  A review of the applicant’s service record shows:

a.  He enlisted in the Regular Army on 14 February 1962.

   b.  On 22 January 1964, court-martial charges were preferred against him for absenting himself from his unit without proper authority on or about 12 May 1962 through 18 May 1962 and 1 May 1964 through 5 June 1964. 
   
   c.  On 24 June 1964, the applicant was convicted by Special Court-martial Order Number 427, for absenting himself from his organization without proper authority. The court sentenced him to 4 months of confinement at hard labor and forfeiture of $73 pay per month for 4 months and reduction to the grade of Private/E-1.  The sentence was adjudged on 24 June 1964 and the sentence approved and will be duly executed.  

   d.  On 29 July 1964, the applicant's immediate commander recommended separation action against the applicant under the provisions of Army Regulation (AR) 635-208 (Unfitness and Suitability).

   e.  On 29 July 1964, the applicant was afforded the opportunity to consult with appointed counsel, or military counsel of his own choice, or civilian counsel at this own expense.  He declined the opportunity to consult with counsel.  He submitted a statement in his own behalf.  He acknowledged:

* understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions 
* understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* understood that he may, up until the date the discharge authority orders, directs or approves his discharge, withdraw his waiver and request that a board of officers hear his case

	f.  On 10 August 1964, the separation authority approved the applicant's discharge for unfitness, under the provisions of AR 635-208 (Unfitness and Suitability), with a character of service of under other than honorable conditions.  

   g.  The applicant was discharged on 11 August 1964, under the provisions of AR 635-208.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he received a character of service of under other than honorable conditions.  He completed 2 years, 2 months and 9 days of net service this period with 109 days of lost time.

4.  The applicant applied to the Army Discharge Review Board and after careful consideration of his military records, the Board determined that he was properly discharged and his request denied.  

5.  By regulation, 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.

6.  The Board can consider the applicants’ petition in his service record in accordance with published equity, injustice, or clemency determination guidance.


BOARD DISCUSSION:

After review of the application and all evidence, the Board determined relief is not warranted.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  Based upon the pattern of misconduct, as well as the failure to provided post-service character evidence to show that he has learned and grown from the evidence leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	X	X	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.  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.  AR 635-200 (Active Duty Enlisted Separations), currently in effect, sets forth the basic policy for separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) states 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) states 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.

3.  Army Regulation 635-208, in effect at the time, set forth the policy for administrative separation for unfitness.  Paragraph 3 provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or honorable discharge.

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.  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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180006974


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