ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 August 2019 DOCKET NUMBER: AR20180012488 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 is requesting his character of discharge be upgraded to general, under honorable conditions. He had orders to return home due to hardship because his father was dying. Upon his return to his duty station, he did not apply for a hardship discharge, but the command processed him out of the Army with an under other than honorable discharge in error. 3. The applicant's military records are not available to the Board for review. However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case. This case is being considered using reconstructed records, which primarily consist of a DD Form 214 and two memoranda from the United States Government. a. He enlisted in the Regular Army on 11 May 1954. b. He completed 1 year and 6 days of foreign service. c. He was discharged from active duty on 26 January 1957 under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge: Unfitness), Separation Program Number (SPN) 488 (Unfitness), with an under other than honorable conditions characterization of service. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows: * he completed 2 years, 5 months, and 3 days of active service with 105 days of lost time * he was not awarded or authorized any decorations or badges d. On 10 July 1957, a memorandum was sent to the adjudication unit requesting circumstances concerning the discharge characterization of the applicant. e. On 5 September 1957, a memorandum was included for his file which states the applicant committed several UCMJ offenses. His superior officers stated that he could be a good Soldier, but repeated committed offenses such as going AWOL for the purpose of getting drunk, failing to appear for duty, or disobeying a lawful order. His superiors stated he was undependable and as a result of this repetition of petty offenses, he was court-martialed, and discharged. f. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 4. By regulation, (AR 635-208) Soldiers could be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warrant a general or honorable discharge, when it has been determined that an individuals’ military record is characterized by one or more of the following: * frequent incidents of a discreditable nature with civil or military authorities * 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 * drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana * an established pattern for shirking * an established pattern showing dishonorable failure to pay just debts 5. 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 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, establish policy and provide procedures and guidance for the prompt elimination of enlisted personnel who are determined to be unfit for further military service. Individuals will be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warrant a general or honorable discharge, when it has been determined that an individuals’ military record is characterized by one or more of the following: * frequent incidents of a discreditable nature with civil or military authorities * 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 * drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana * an established pattern for shirking * an established pattern showing dishonorable failure to pay just debts 3. AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, provides the policy and procedures for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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 (General discharge) states 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. 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 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) AR20180012488 4 1