ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 July 2019 DOCKET NUMBER: AR20180012456 APPLICANT REQUESTS: upgrade of his undesirable discharge to either a general under honorable conditions discharge or to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * NA Form 13038 (Certificate of Military Service) from the National Archives and Records Administration * Response Letters from the National Personnel Records Center (NPRC) 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 was 16 years old when he entered the military and was not mature enough to follow military rules. He believes this is the reason for receiving the undesirable discharge. He served 11 months, 21 days driving trucks and moving heavy equipment. He has been trying to obtain evidence to justify his undesirable characterization of his discharge since 7 October 2015, but he was told his records were burned in a fire. He is requesting the upgrade due to the lack of evidence. He is requesting the discharge upgrade, because he is 80 years old and believes his period of service contributed to his bad health, and is in need to contact the Veterans Administration for his earned benefits. 3. The applicant's records are not available to the Board for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed that his records were lost or destroyed in that fire. However, he provides sufficient documents for the Board to conduct a fair and impartial review of this case. 4. The applicant provides the following: a. Response letters from the NPRC, 1 Archives Drive, St. Louis, Missouri, dated 7 October 2015, 5 November 2015, and 18 July 2018 that show: * the applicant contacted the NPRC requesting records of his military service * majority of Army personnel records for his period of service were destroyed in a fire at the NPRC on 12 July 1973 * the NA Form 13038 verifies his military service and may be used for official purpose, and indicates a seal has been affixed to the certificate to attest to its authenticity b. NA Form 13038, Certificate of Military Service dated 18 July 2018 that shows: * the applicant’s name and service number * he served in the Regular Army from 11 June 1955 to 21 May 1956 * he received an undesirable discharge * he held the rank of private * his date and place of birth are not available 5. Special Regulation (SR) 615-360-1 (Enlisted Personnel) (Discharge Procedures and Preparation of Separation Forms) in effect at the time established an outline of procedures to be followed in effecting discharge of enlisted personnel for any cause (except disability) in any type of organization or separation activity, and describe the proper method of executing and disposing of the forms, records, and reports required. 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, 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. He received an undesirable discharge for facts and circumstances unavailable for the Board to review. Based upon the amount of time that has passed since his separation, the Board agreed to grant relief by upgrading the characterization of service to Under Honorable Conditions (General) characterization as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a NA Form 13038 (Certificate of Military Service) showing his character of service as under honorable conditions (General). 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to the granting of an Honorable character of service. 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. Special Regulation (SR) 615-360-1 (Enlisted Personnel) (Discharge Procedures and Preparation of Separation Forms) in effect at the time established an outline of procedures to be followed in effecting discharge of enlisted personnel for any cause (except disability) in any type of organization or separation activity, and describe the proper method of executing and disposing of the forms, records, and reports required. a. Paragraph 11a, established the separation certificate as documentary evidence of military service and to furnish a vital record of the individual for interested government agencies, which assist the individual in obtaining the rights and benefits which may accrue to the individual as the result of service. b. Paragraph 11b, provides for the types of separation certificates, except retirement, authorized during the individual’s era of service. Table II shows an undesirable discharge certificate for a discharge under conditions other than honorable. 3. Army Regulation (AR) 635-200, sets forth the basic authority for the separation of enlisted personnel. Paragraph 4 (discharge certificates) are furnished to enlisted and inducted personnel when discharged, and shows an undesirable type of discharge certificate provides for under conditions other than honorable which is given by an administrative action. 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 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 government acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for the 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) AR20180012456 3 1