ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

IN THE CASE OF:  Jones, James E. 

	BOARD DATE:  21 May 2019

	DOCKET NUMBER:  AR20180011929


APPLICANT REQUESTS:  Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Dockets Number AR20090008042 and AR201000029943, on 15 October 2009 and 28 June 2011, respectively.  Specifically, he requests his undesirable discharge be upgraded to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 19 August 1964

FACTS:

1.  Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Dockets Number AR20090008042 and AR201000029943, on 15 October 2009 and 28 June 2011, respectively.

2.  The applicant states he disputes the unfavorable discharge, he was never unfavorable or disrespectful.  He has requested an upgrade on six prior occasions and was never given a review.

3.  The applicant enlisted in the Regular Army on 12 April 1963.

4.  A DA Form 26 (Record of Court-Martial Conviction) shows the applicant was found guilty by:

   a.  Special court-martials, on:

* 9 January 1964, for being absent without leave (AWOL) for 2 days and for breaking restriction
* 24 January 1964, for failure to go his appointed place of duty (four specifications) and 3 days AWOL 
* 29 June 1964, for being AWOL from 15 May to 22 June 1964 (39 days)

   b.  Summary court-martial on 25 March 1964, for failure to go his appointed place of duty (two specifications) and being AWOL for 2 days.

5.  The applicant received nonjudicial punishment (NJP) on 18 October 1964, under Article 15 of the Uniform Code of Military Justice (UCMJ), for being AWOL from on or about 30 September 1963 through on or about 13 October 1963. 

6.  It appears the applicant was notified by his commander of his commander's intent to initiate his separation from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) and/or Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness); however, the notification memorandum is not available for review.  Nevertheless, the applicant's platoon leader, on 10 April 1964, submitted his recommendation that the applicant be discharged.  The platoon leader stated the applicant was constantly in trouble ranging from AWOLs to malicious theft.  He had been caught lying and stealing from fellow Soldiers on several occasions.  He was consistently late for duty and when restricted to the barracks, he disobeyed orders and broke restriction.  

7.  The applicant was afforded a physical and psychiatric examination on 10 July 1964.  No disqualifying mental or physical defects sufficient to warrant disposition through medical channels were found.

8.  The applicant's commander formally recommended the applicant's separation from service on 17 July 1964, under the provisions of Army Regulation 635-208, by reason of unfitness.  The commander stated that the applicant had indicated he could not remain in the service with his domestic problems and he desired to get out of the Army any way he could.  The battalion commander stated that the applicant had received one NJP, three special court-martial convictions, and one summary court-martial conviction.  Numerous attempts had been made in his former and present unit to help him rehabilitate.

9.  The record indicates the applicant received legal counseling, waived representation by counsel, waived consideration of his case by, and personal appearance before, a board of officers, and declined to submit a statement in his own behalf.

10.  An FB Form 1429 (Record of Lost Time), dated 21 July 1964, shows the applicant had been AWOL on 7 occasions and confined on 2 occasions for a total of 85 days of lost time as of that date. 

11.  The separation authority approved the applicant's separation on 1 August 1964, under the provisions of Army Regulation 635-208, by reason of unfitness, and directed the applicant receive an Undesirable Discharge Certificate. 

12.  The applicant was discharged on 19 August 1964.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-208, for unfitness, and his service characterization was under other than honorable conditions.  His DD Form 214 shows:

* he was discharged in the rank/grade of private/E-1
* 11 months and 26 days of creditable service 
* 132 days of lost time due to AWOL or confinement
* no award of any awards or decorations

13.  The Army Board for Correction of Military Records has previously reviewed and denied that applicant's requests for an upgrade of his characterization of service on two occasions.

14.  The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DOD guidance for consideration of discharge upgrade requests.  The Board considered the applicant’s statement, the length of his service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency.  The Board found no in-service mitigation for the misconduct and the applicant provided none; the Board found the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination.  Based on the preponderance of evidence, the Board determined that the character of service he received upon separation was not in error or unjust.

2.  After reviewing the application and all supporting documents, the Board found that relief was not warranted.

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.

ADMINISTRATIVE NOTE(S):

Not Applicable



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 ABCMR.  The regulation provides 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 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’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 provides that 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

	c.  Paragraph 3-7c states that an under other than honorable conditions discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  At the time of the applicant's separation the regulation provided for the issuance of an Undesirable Discharge Certificate.

3.  Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness.  The regulation stated that individuals would be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warranted a general or honorable discharge, when it had been determined that an individual's military record was characterized by one or more of the following: (a) frequent incidents of a discreditable nature with civil or military authorities; (b) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault upon a child, or other indecent acts or offenses; (c) drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana; (d) an established pattern for shirking; or (e) an established pattern showing dishonorable failure to pay just debts.  An undesirable discharge was normally considered appropriate.

4.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds.  
     
	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, Boards 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.



ABCMR Record of Proceedings (cont)	 AR20180011929
0

4


1