BOARD DATE: 23 May 2019 DOCKET NUMBER: AR20190001297 APPLICANT REQUESTS: * an upgrade of his under honorable conditions discharge * personal Board appearance APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Armed Forces of the United States Report of Transfer of 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 was a Soldier that was missing in action in the woods during the period of 16 to 19 May 1965. He also adds that he did not get into any trouble during his military service. He has attached his DD Form 214 which shows he was missing. 3. On 7 September 1962, the applicant enlisted in the Regular Army for a period of 3 years. 4. His Service Record shows: * he was absent without leave (AWOL) from 16 to 19 May 1965 * he was not recommended for further military service (barred from reenlisting) * his conduct rating was “unsatisfactory” 5. On 8 October 1963, he was reduced to the rank/grade of private (PV2)/E-2 for misconduct, under the provisions of Article 15, Uniformed Code of Military Justice. 6. The applicant’s record shows from 18 November 1963 to 18 June 1965 he received non-judicial punishment on multiple occasions for: * failing to obey a General Order; speeding in excess of the posted speed limit * failing to obey a General Order; frequenting a known off-limits establishment * fighting in the billets in a manner which could have caused bodily harm * unlawfully striking a German National in the face with his fist * being AWOL from 16 to 20 May 1965 7. On 19 February 1965, he was convicted by a special court-martial. The applicant was found guilty of unlawfully striking a noncommissioned officer in the face with his fist. He was sentenced to be confined at hard labor for five (5) months, forfeiture of fifty ($50.00) dollars per month for 5 months and to be reduced to the grade of private (E-1). 8. On 19 March 1965, only so much of the sentence as provided for confinement at hard labor for three (3) months, forfeiture of $50.00 dollars per month for 3 months and reduction to the grade of private (E-2) was approved and ordered duly executed. The execution of that portion adjudging confinement at hard labor for 3 months was suspended for 6 months, at which time, unless suspension was sooner vacated; the suspended portion of the sentence would be remitted without further action. 9. On 3 April 1965, so much of the sentence in excess of forfeiture of $50.00 dollars per month for 3 months and reduction to the grade of private (E-2) was set aside, and all rights, privileges, and property of which the applicant had been deprived by virtue of that portion of the sentence so set aside would be restored. 10. On 8 June 1965, the unexecuted portion of his sentence was vacated. 11. On 28 June 1965, a Certificate of Unsuitability for Reenlistment was approved and placed in the applicant’s personnel records. He was barred from reenlisting in the Army. 12. On 19 July 1965, he was medically cleared for separation. A Report of Psychiatric Evaluation recommended the applicant be barred from reenlisting and found he had the mental capacity to proceed with administrative action deemed appropriate by his command. 13. On 15 September 1965, the applicant was discharged accordingly under the provisions of Army Regulation 635-200 (Personnel Separations – General Provisions for Discharge and Release), by reason of expiration of term of service (SPN 201), with an under honorable conditions character of service. He completed 3 years and 5 months of net service. He was transferred to the U.S. Army Reserve Control Group (Reinforcement) and was not awarded a personal decoration. 14. His DD Form 214 shows in item 32 (Remarks) that he was retained in the service 5 days for the convenience of the Government and he had 4 days of lost time. 15. In regards to the applicant's request for a personal appearance, Army Regulation 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 16. Army Regulation 635-200, in effect at the time, provided for the discharge of enlisted personnel upon expiration of the term of enlisted service. The regulation stated an honorable discharge would be furnished when the individual had conduct ratings of at least "good," had efficiency ratings of at least "fair," had not been convicted by a general court-martial, and had not been convicted more than once by a special court- martial. 17. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; while the applicant had one year of creditable honorable service as reflected by excellence ratings on his DA Form 20 (Enlisted Qualification Record) the applicant’s service record exhibits numerous episodes of misconduct during the remaining two years of service. In further consideration of upgrade, the Board noted that the applicant had no wartime service, no personal awards and insufficient evidence of mitigating circumstances for the misconduct. Neither did the Board find sufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. The Board agreed that the applicant’s discharge characterization of General, Under Honorable Conditions is appropriate. OARD 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. 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 635-200 (Personnel Separations – General Provisions for Discharge and Release), in effect at the time, provided for the discharge of enlisted personnel upon expiration of the term of enlisted service. The regulation stated an honorable discharge would be furnished when the individual had conduct ratings of at least "good," had efficiency ratings of at least "fair," had not been convicted by a general court-martial, and had not been convicted more than once by a special court- martial. 3. 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 ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 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. 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, 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. 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) AR20190001297 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190001297 5 ABCMR Record of Proceedings (cont) AR20190001297 4