ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 July 2019 DOCKET NUMBER: AR20180007697 APPLICANT REQUESTS: an upgrade of his under conditions other than honorable discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * congressional letter * self-authored statement 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, in effect: a. He enlisted for Airborne Infantry and completed his second week of jump school at Fort Benning, Georgia. Upon completion, he went home on leave, because his mother was in bad health and the day after his 14 year old brother’s birthday he was missing. His brother had gone into town and was never seen again. It was later discovered that his brother was murdered. The man that killed him was arrested and confessed to committing the act. The man knew his mother and brother because he had done odd jobs for his mother. He saw his brother going into town to spend his birthday money, offered him a ride, then knocked his brother unconscious, strangled him for the money, and buried him in a shallow grave. b. When the applicant returned after 7 days of being absent without leave (AWOL), he was given 30 days D.S.A and later an undesirable discharge. He pleaded with his Commander for another chance to complete his service, but the Commander felt his actions and mental state was unfit for military service. He regretted his actions for 54 years and has always felt deprived of not being allowed to know what the outcome would have been if he was allowed to complete his service. He is sincerely requesting his discharge be upgraded, so he can put the shame and regret to rest. 3. The applicant provides a letter from the Office of Congresswoman Brenda L. Lawrence asking that this discharge be reviewed and a reply furnished. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 24 February 1964. b. He received/accepted non-judicial punishment on/for: * 11 June 1964 for failing to go at the time prescribed time to his appointed place of duty on 9 June 1964 * 2 September 1964 for absenting himself from his unit from 24 August 1964 to 1 September 1964 * 24 November 1964 for absenting himself from his unit from 21 November 1964 to 24 November 1964 * 15 July 1965 for failing to go at the time prescribed to his appointed place of duty on 15 July 1965 c. He was convicted by special court-martial on 9 March 1965 for being AWOL from 21 December 1964 to 31 December 1964 and from 9 January 1965 to 31 January 1965. He was sentenced to be confined at hard labor for four months and to forfeit $55.00 per month for four months. d. He was convicted by special court-martial on 26 July 1965 for being AWOL from 23 June 1965 to 4 July 1965. He was sentenced to be confined at hard labor for six months and to forfeit $20.00 per month for six months. e. On 19 October 1965, the applicant’s immediate commander initiated action to separate him under the provisions of Army Regulation (AR) 635-208 (Personnel Separations), in effect at the time for unfitness, due to frequent incidents of discreditable nature with military authorities. f. On 2 November 1965 the applicant had a psychiatric evaluation and it was determined that he had no disqualifying mental defects sufficient to warrant disposition through medical channels; he was mentally responsible, able to distinguish right from wrong and adhere to the right, and has the mental capacity to understand and participate in administrative proceedings. g. on 24 November 1965, the applicant was advised by counsel of the basis for the separation action for unfitness under AR 635-208. He waived consideration of his case by a board of officers and waived a personal appearance before a board of officers. He elected not submit statements on his behalf. He acknowledged: * as a result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws * he may expect to encounter substantial prejudice in civilian life in situations where the quality of service rendered in the Armed Forces or the type of discharge received there from may have a bearing h. Consistent with the chain of command recommendations, the separation authority approved the applicant’s discharge on 21 December 1965, under the provisions of AR 635-208. He would be furnished an Undesirable Discharge Certificate. i. He was discharged from active duty on 21 December 1965 in accordance with AR 635-208 with an under other than honorable conditions characterization of service. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year, 1 month and 8 days of net service with 260 days of lost time. 5. There is no evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within the board’s 15 year statute of limitations. 6. By regulation (AR 635-208), provides that individuals would be discharged by reason of unfitness when their records were characterized by one or more frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or 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 an honorable discharge. 7. The Board should consider the applicant’s petition and his service record in accordance with the 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. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the short term of honorable service completed prior to a pattern of misconduct, as well as the failure to accept responsibility for the events 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. Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness. Paragraph 3 of the regulation 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 an honorable discharge. 3. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel a. Paragraph -9a (Honorable Discharge) states an honorable discharge is a separation from the Army with honor. The issuance of an honorable discharge is conditioned upon proper military behavior and proficient and industrious performance of duty, giving due regard to the rank or grade held and the capabilities of the individual concerned. b. Paragraph 10a (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficient meritorious to warrant an honorable discharge. c. Paragraph-11a (Undesirable Discharge) states an undesirable discharge is an administrative separation from the service under conditions other than honorable. It is issued for unfitness, misconduct, or for security reasons. d. AR 615-368, paragraph 1 states when an individual has already demonstrated that he is totally unfit for further retention in the military service for misconduct and his rehabilitation is considered impossible after repeated attempts to accomplish same have failed, attempts at rehabilitation are impracticable 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 (BCMNRs) 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 court-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 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. 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. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180007697 4 1