ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 June 2019 DOCKET NUMBER: AR20180012436 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions character of service to under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 398 (Statement of Personal History) * Acknowledgement of Service Obligation * DA Form 428 (Application for Identification Card) * Information Data Sheet * Congressional correspondence 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 wants to change his undesirable discharge to a general, under honorable conditions. 3. The applicant provides: a. DD Form 398 (Statement of Personal History), which reflects the applicant’s personal information at the time of induction. b. Acknowledgement of Service Obligation, dated 30 January 1964, which states that the applicant is aware that he was required to serve 6 years unless sooner discharged in accordance with standards prescribed by the Secretary of Defense. c. DA Form 428 (Application for Identification Card), dated 1 June 1964, which states the applicant applied for a identification card due to his card being mutilated. a. d. Information Data Sheet, which reflects the applicant’s appointments, reductions and promotions. It also states his time lost, induction data and record of service. 4. A review of the applicant’s service record shows: a. He was inducted into the Army of the United States on 30 January 1964. b. His DA Form 24 (Service Record) reflects he was declared absent without leave (AWOL) for 84 days from 30 December 1964 to 23 March 1965 and confined for 150 days from 27 March 1965 to 23 August 1965. c. Special Court Martial Number 318, conducted on 20 April 1965, indicates he was charged and found guilty of one specification of AWOL. His punishment, in effect, consisted of reduction to private (PVT)/E-1 and confinement with hard labor for six months. d. The record is void of the immediate commanders notification of separation. However, on 15 July 1965, the applicant acknowledged the actions being taken to separate him under the provisions of Army Regulation (AR) 635-208 (Personnel Separations – Discharge – Unfitness). He also acknowledged that: * he was afforded but declined counsel * he waived his rights to a board hearing * he desired not to submit a statement on his behalf * he may be deprived of many rights and benefits as a veteran under both Federal and State law * that he may expect to encounter some prejudice in civilian life where the type of service rendered in the Armed Forces or the type of discharge received by him having a bearing e. On 19 July 1965, his immediate commander recommended administrative separation under the provisions of AR 635-208, for unfitness (frequent involvement in incidents of a discreditable nature with civil or military authorities) due to a Special Court Martial for one specification of AWOL totaling 84 days. f. The chain of command on 20 July 1965, recommended approval and further recommended that an Undesirable Discharge Certificate be furnished. g. Consistent with the chain of command’s recommendations, the separation authority after a legal review, approved the request for administrative discharge under the provisions of AR 635-208 for unfitness on 9 August 1965 with an under other than honorable conditions discharge and reduction to private/E-1. a. h. Special Court Martial Order Number 600, dated 11 August 1965, stated the unexecuted portion of the approved sentence to confinement with hard labor for six months, was remitted effective the date of discharge. i. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) reflects that on 14 August 1962, he was discharged from active duty under the provisions of AR 635-208, Separation Program Designator (SPN) 28B (Unfitness – frequent involvement in incidents of a discreditable nature with civil or military authorities), with an under other than honorable conditions character of service. He had 11 months of active duty service. He had 254 days of lost time from 30 December 1964 to 23 March 1965 and from 27 March 1965 to 23 August 1965. 5. By regulation (AR 635-208), an individual will be discharge for unfitness when it is determined that an individual has frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or use, a pattern of shirking, or dishonorable failure to pay just debts or contribute to support dependents. 6. 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. The Board found the applicant served a short term of service prior to lengthy periods of multiple AWOLs, and no in-service mitigatiing factors for the misconduct. The Board found a lack of post-service achievements or character evidence submitted by the applicant to show he has learned and grown from the events leading to his discharge. Based on a preponderance of evidence, the Board concluded that the characterization of service received at the time of discharge 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. 6/12/2019 X CHAIRPERSON Signed by: 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), establishes policy and provides procedures and guidance for eliminating enlisted personnel who are found to be unfit or unsuitable for further military service. 3. AR 635-212 (Personnel Separations – Discharge - Unfitness and Unsuitability), then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. Paragraph 6a stated an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion; (3) Drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern for shirking; (5) An established pattern showing dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgments of a civil court concerning support of dependents. When separation for unfitness was warranted, an individual separated by reason of unfitness will be furnished an Undesirable Discharge Certificate except that an Honorable or General Discharge Certificate may be awarded if the individual being discharged has been awarded a personal decoration or if warranted by the particular circumstances in a given case. 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 1. might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.