ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  18 July 2019

	DOCKET NUMBER:  AR20180009872


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)
* National Personnel Records Center (NPRC) Letter
* Certification of Military Service

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 after his close friend was released early with an under honorable conditions (general) discharge, his battery commander asked him if he would also desire an early release.  He replied “yes” and he received an under other than honorable conditions discharge.  If he had known this, he would not have said “yes.”  Prior to attending Jump School, he was issued an honorable discharge.  This discharge seems to have been lost in the fire at St. Louis, MO.

3.  The applicant provides the following

* NPRC Letter, dated 28 June 2017, wherein he was advised his records may have been lost in the fire and that office was providing him the requested separation document obtained from an alternate records source and a Certification of Military Service verifying his military service
* Certification of Military Service, dated 28 June 2017, showing he served in the Regular Army (RA) from 24 January 1958 to 13 August 1959 and he was discharged under other than honorable conditions

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 NPRC in 1973.  It is believed his records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.

5.  Review the applicant’s reconstructed record shows:

	a.  He enlisted in the RA on 24 January 1958, for 3 years.  

	b.  On 23 April 1959, he was convicted by a special court-martial of one specification of failing to obey a lawful order issued by his superior officer.  The court sentenced him to a forfeiture of $50.00 pay for 1 month.  On the same date, the convening authority approved the sentence and ordered the sentence executed.  

	c.  Orders Number 24, issued by Battery C, 2nd Howitzer Battalion, 11th Artillery, Fort Campbell, KY on 12 August 1959, announced his reduction to pay grade E-1, effective 10 August 1959.

	d.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 13 August 1959, under the provisions of Army Regulation (AR) 635-208 (Personnel Separations – Discharge – Unfitness), paragraph 3d.  The form also shows he completed 1 year, 5 months, and 3 days of total active service; 14 days of other service; and 46 days of time lost.  His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate.  This form further shows in:

* item 11c (Reason and Authority) – SPN (Separation Program Number) 386
* item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) – the entry “None”

6.  By regulation (AR 635-208), individuals will be discharged by reason of unfitness when it is determined they are unfit for further military service despite reasonable attempts to rehabilitate or rehabilitation is impracticable.  When discharged because of unfitness, DD Form 258a (Undesirable) will be furnished.  

7.  In reaching its determination, the Board can 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 and show remorse 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 (AR) 635-208 (Personnel Separations – Discharge - Unfitness) 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 of several behaviors including frequent incidents of a discreditable nature with civil or military authorities.  The regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.

3.  AR 635-200 (Personnel Separations – General Provisions for Discharge and Release), in effect at the time, stated in:  

	a.  Paragraph 9 (Honorable Discharge) – an honorable discharge was a separation from the Army with honor.  The issuance of an honorable discharge was conditioned upon proper military behavior and proficient and industrious performance of duty, giving due regard to the rand or grade held and the capabilities of the individual concerned.

	b.  Paragraph 10 (General Discharge) – a general discharge was a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge

4.  AR 635-5-1 (Separation Codes), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the Separation Program Number (SPN) to be entered on the DD Form 214.  The regulation stated the SPN 386 was the appropriate code to assign Soldiers separated because of unfitness (established pattern of shirking).

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 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 an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180009872


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