IN THE CASE OF: BOARD DATE: 17 December 2019 DOCKET NUMBER: AR20180011960 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 5 July 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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 received a series of inoculations in preparation for his deployment to the Suez Canal; as a result, he developed Hepatitis C. He was hospitalized and in a coma for 13 weeks. Upon his return to the medical holding company, he forgot to salute a lieutenant and was made to stand for an hour. After being dismissed, he went absent without leave (AWOL). He remained AWOL for about a month before returning and being separated. 3. The applicant enlisted in the U.S. Army Reserve (USAR) on 22 July 1956. He entered active duty on 6 August 1956. 4. The applicant's available medical records show after 5 days of service, he developed severe chills and fever. 5. A DD Form 481-2 (Clinical Record Cover Sheet), dated 27 September 1956, shows he was diagnosed with infectious mononucleosis with hepatitis. It also shows he was AWOL from 17 ? 27 September 1956. 6. A Standard Form 502 (Narrative Summary), dated 9 August 1956, shows the applicant was hospitalized for 14 days. He was dropped from the hospital roles due to being AWOL. 7. A Mental Hygiene Consultation, dated 19 October 1956, shows that while confined in the stockade, the applicant was seen for poor rapport, dull affect, and bizarre behavior. During the evaluation, he reported that on the advice of his counsel, he advised the court of his drug addiction and that his last fix was in the first week of his AWOL period. He admitted to several other delinquent activities. The applicant was treated for six weeks due to a liver ailment and while convalescing, he went AWOL because he was not granted convalescent leave. He was diagnosed as a heroin addict and it was recommended that he expeditiously separated from the service under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness). 8. The applicant's separation processing documentation is not available for review. However, the evidence shows he was afforded a board of officers hearing on 12 October 1956. The board recommended that due to his heroin addiction, he should receive an immediate discharge under Army Regulation 635-208. 9. The applicant was discharged on 13 November 1956, under the provisions of Army Regulation 635-208, by reason of unfitness. The DD Form 214 he was issued confirms his service was characterized as UOTHC. 10. The Board may consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. 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 :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 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 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. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel or Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. It provides: a. 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. 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. 4. Army Regulation 635-208, in effect at the time, provided the authority for discharging enlisted personnel for unfitness. Separation action was to be taken when the commander determined that the best interest of the service would be served by eliminating the individual concerned and: reasonable attempts to rehabilitate or develop the individual to be a satisfactory Soldier were unlikely to succeed; or rehabilitation was impracticable, such as in cases of confirmed drug addiction or when the medical and/or personal history indicated that the individual was not amenable to rehabilitation measures; or disposition under other regulations was inappropriate. Unfitness included frequent incidents of a discreditable nature with military or civil authorities, an established pattern of shirking, and drug abuse. If, after examination by a medical officer or psychiatrist, there appears to exist mental or physical disability that is the cause of unfitness, a board of medical officers will be convened. An undesirable discharge was normally considered appropriate; however, in unusual circumstances, a general or honorable discharge was authorized, as directed by the convening authority. 5. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180011960 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180011960 4 ABCMR Record of Proceedings (cont) AR20180011960 3