IN THE CASE OF: BOARD DATE: 17 January 2020 DOCKET NUMBER: AR20190005344 APPLICANT REQUESTS: * In effect, upgrade of his undesirable discharge under other than honorable conditions * Permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) 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, in effect, he is an African American, and his discharge was unjust because it resulted from racial prejudice. 3. The applicant's complete military records are not available for review. A fire in 1973 destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC). The Army personnel records affected dated between November 1912 and January 1960. It is believed his records were lost or destroyed in that fire. However, the NPRC provided a copy of his separation orders, which offer sufficient information to address the applicant's request. a. His separation orders show, on 26 June 1957, he was separated per Army Regulation (AR) 635-208 (Personnel Separations – Discharge – Undesirable Habits and Traits of Character). b. A Veterans Administration Form 3-3145 (Notice of Assignment of C-Number) reflects the applicant's active duty service dates as 21 January 1955 to 26 June 1957. 4. AR 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. 5. During the applicant's era of service, commanders could separate Soldiers under the provisions of AR 635-208 for undesirable habits or traits of character; included were the following: * habits/traits of character manifested by antisocial or amoral behavior; chronic alcoholism; criminalism; drug addiction; pathological lying, or misconduct * possessing unclean habits * repeatedly committing petty offenses not warranting trial by courts-martial * habitual shirking * following a disposition or medical board, recommended for discharge because of a psychopathic personality disorder * demonstrates behavior, participates in activities, or has associations, which tend to show the Soldier is not reliable or trustworthy 6. The applicant asserts, in effect, he was the victim of racial injustice. 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 determined the available records are sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. The Board carefully considered the applicant's request, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in- service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation 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. 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 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-208, in effect at the time, provided procedures and guidance for elimination of enlisted personnel with undesirable habits or traits of character. The following reasons could form the basis for separation under this regulation: * habits/traits of character manifested by antisocial or amoral behavior; chronic alcoholism; criminalism; drug addiction; pathological lying, or misconduct * possessing unclean habits * repeatedly committing petty offenses not warranting trial by courts-martial * habitual shirking * following a disposition or medical board, recommended for discharge because of a psychopathic personality disorder * demonstrates behavior, participates in activities, or has associations, which tend to show the Soldier is not reliable or trustworthy 3. AR 635-200, in effect at the time, prescribed policies and procedures for the discharge or release from active duty of enlisted personnel. Commander had the authority to issue discharge certificates reflecting the Soldier's character of service, based on the commander's evaluation of the Soldier's service and character during his overall enlistment period. a. An honorable discharge was furnished when the Soldier's record showed: * character ratings of at least "good" * efficiency ratings of at least "fair" * no general court-martial convictions * not more than one special court-martial conviction * subsequent honest and faithful service over a greater period could outweigh disqualifying entries in the service record b. A general discharge under honorable conditions was given to Soldiers who did not qualify for an honorable discharge. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. b. 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. 5. 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 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. 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) AR20190005344 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190005344 5 ABCMR Record of Proceedings (cont) AR20190005344 3