ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 September 2019 DOCKET NUMBER: AR20190005294 APPLICANT REQUESTS: The applicant requests: * an upgrade of his general under honorable conditions discharge to an honorable discharge * personal appearance before the board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Department of Veterans Affairs (VA) letter, dated 5 April 2019 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 17 years old at the time of his enlistment and he will be 68 years in April. He is a minister now and he is requesting an upgrade so that his family name would be without a blemish. 3. On 30 April 1968, at the age of 17 years old, the applicant enlisted in the Regular Army for a term of 3 years. On 17 April 1969, he was honorably discharged for immediate reenlistment. He reenlisted on 18 April 1969 for a term of 3 years. 4. Special Court Martial Order Number 34, dated 12 January 1970, shows, the applicant was convicted by special court-martial. The offenses, punishment, and date adjudged are not available; however, the order shows he did receive confinement at hard labor, which was suspended for sixty days and this order vacated the suspended punishment of confinement. 5. On 20 January 1970, the applicant was convicted by summary court-martial for one specification of being absent without leave (AWOL) from 3 January 1970 and remaining absent until 7 January 1970. He was sentenced to forfeiture of pay for one month, confinement at hard labor for 30 days, and reduction to private one (PV1)/E-1. On 26 January 1970, the sentence was approved and ordered executed. 6. On 7 June 1971, charges pending against the applicant for being AWOL from 25 April 1970 until 18 April 1971 were set aside in order to expedite the disposition of his physical evaluation board (PEB). 7. The PEB determined the applicant was unfit for military duty and the case was forwarded to the commanding general to determine as to whether the applicant would be processed under the physical disability proceedings or administrative proceedings. 8. On 17 September 1971, pursuant to Army Regulation (AR) 635-40 (Personnel Separations – Physical Evaluation for Retention, Retirement, or Separation). The commander determined that the applicant’s disability was the cause or the substantial contributing cause of his misconduct and he would be processed under the physical disability procedures. 9. VA records indicate Mr. Zimmerman went AWOL and upon his return, immediately hospitalized at Fitzsimons Army Hospital for a psychiatric condition. The enlisted qualification record shows the applicant was assigned as a patient to the Fitzsimons General Hospital, Denver, CO, from 26 April 1971 until his discharge. 10. On 10 November 1971, the applicant was discharged accordingly. His service was characterized as under honorable conditions under AR 635-40, paragraph 5-8a(3), physical disability with severance pay. He completed 1 year and 13 months of net service this period with approximately 558 days of AWOL and confinement. He was awarded or authorized the National Defense Service Medal and M-14 Rifle Expert Marksmanship Qualification Badge. 11. The applicant petitioned the Army Discharge Review Board (ADRB). On 18 October 1977, ADRB denied his petition, determining that he was properly discharged. 12. The applicant provided a letter from the VA, dated 5 April 2019, instructing the applicant on what he needed to do in order to apply for VA assistance or if he had questions. 13. The applicant states he was 17 years old at the time of his enlistment and he will be 68 years in April. He is a minister now and he is requesting an upgrade so that his family name would be without a blemish. His record shows he enlisted at the age of 17 years old, he was convicted by special court-martial (charges unknown) and a summary court-martial for being AWOL. He served 12 months and 13 days of his 36 months contractual obligation. He had approximately 558 days of lost time. a. 14. AR 635-40, stated based upon review in Headquarters, Department of the Army of the findings and recommendations of the PEB, the military personnel center (MILPERCEN) will take final action by direction of the Secretary of the Army and direct separation for physical disability with severance pay under Title 10, U.S. Code. Enlisted members discharged by reason of physical disability will be honorably discharged and issued an Honorable Discharge Certificate, unless the character of service has been such as to warrant issuance of a General Discharge Certificate in accordance with AR 635-200. AR 635-200 (Personnel Separations – Enlisted Separations), stated an honorable characterization will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. His PEB Board determination clearly states "pursuant to AR 635-40, it has been determined that service member's disability was the cause or substantial contributing cause of his misconduct, there physical disability processing will be utilized." 14. In regards to the applicant's request for a personal appearance, Army Regulation 15-185, 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. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record and length of service, the frequency and nature of his misconduct, his hospitalization, the setting aside of charges for AWOL, the results of his physical evaluation board and the reason for separation (disability). The Board considered the applicant’s statement regarding post-service conduct. The Board found in-service mitigation for his misconduct and his post-service conduct supported clemency. Based on a preponderance of evidence, the Board determined that the character of service he received should be upgraded as a matter of clemency. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XXX :XXX :XXX 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 amending the applicant’s DD Form 214 for the period of service ending 10 November 1971 to reflect in item 13a. (Character of Service) – “Honorable” vice “Under Honorable Conditions.” 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 a personal appearance. 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. AR 635-40 (Personnel Separations – Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established and prescribed Purpose. This regulation established policies and prescribes procedures for the physical disability evaluation of members of the Army for retention, retirement, or separation. Paragraph 5-8e stated based upon review in Headquarters, Department of the Army of the findings and recommendations of the physical evaluation board, the military personnel center (MILPERCEN) will take final action by direction of the Secretary of the Army and direct separation for physical disability with severance pay under Title 10, U.S. Code. Enlisted members discharged by reason of physical disability will be honorably discharged and issued an Honorable Discharge Certificate, unless the character of service has been such as to warrant issuance of a General Discharge Certificate in accordance with AR 635-200. 3. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. a. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. b. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. 5. AR 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. ABCMR Record of Proceedings (cont) AR20190005294 5 1