ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 10 February 2020 DOCKET NUMBER: AR20190005507 APPLICANT REQUESTS: reconsideration of her deceased husband's, a former service member (FSM), request for a discharge upgrade from under conditions other than honorable to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Forms 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), dated 21 February and 24 July 2019 * Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim), dated 11 March 2019 * Certificate of Live Birth, State of * Marriage Certificate, dated September * Death Certificate, State * Letter, Army Review Boards Agency, dated 19 July 2019 REFERENCES: 1. Title 10, U.S. Code, 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 Army Board for Correction of Military Records (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. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. A general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. b. An undesirable discharge is an administrative separation under conditions other than honorable. It may be issued for unfitness or misconduct. c. Chapter 13 provided procedures and guidance to separate an individual for unfitness when it was clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort was unlikely to succeed. An individual separated by reason of unfitness would be furnished an Undesirable Discharge Certificate, except that an Honorable or General Discharge Certificate might be issued if the individual had been awarded a personal decoration or if warranted by the particular circumstances in his case. 3. 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 (BCMRs) 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. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the FSM's case by the ABCMR in Docket Number AC93-05843 on 26 May 1993. 2. The applicant did not submit any newly discovered relevant evidence that was not available to the Board when it denied the FSM's application approximately 27 years ago. However, the Board previously denied the application because it was not filed timely. The application was dated 7 August 1992, and the timeline to file a request for correction expired on 14 November 1976. 3. The applicant states her husband was going to be medically discharged due to frostbite injuries from his service in Korea. However, a superior officer decided against that recommendation. When her husband argued about the matter, he received nonjudicial punishment which lead to his discharge under conditions other than honorable. The applicant is seeking an upgraded discharge to honor her deceased husband and to be eligible for benefits available as a surviving spouse. 4. The FSM was inducted into the Army of the United States on 17 May 1972. 5. On 25 April 1973 while serving in the Republic of Korea, the FSM was convicted by a summary court-martial for abandoning his guard post and failing to go to his appointed place of duty. His sentence included reduction to pay grade E-1, forfeiture of $100.00, and 35 days of extra duty. 6. The FSM accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on/for: * 1 May 1973 – for sleeping on duty and being disrespectful in language toward his superior noncommissioned officer on 27 April 1973 * 15 May 1973 – for breaking restriction on 3 May 1973 and failing to report for duty on 4 May 1973 * 5 June 1973 – for failing to report to his appointed place of duty on 13 May 1973 * 15 June 1973 – for being absent without authority on 13 June 1973 * 8 July 1973 – for being absent without authority on 8 July 1973 and 9 July 1973, and failing to obey a lawful order on 11 July 1973 7. On 25 July 1973, the FSM's company commander recommended separation proceedings against him for unfitness under the provisions of Army Regulation 635-200, (Personnel Separations – Enlisted Personnel), chapter 13, due to frequent incidents of a discreditable nature with civil or military authorities and established pattern for shirking. His company commander stated the FSM was reassigned to his unit for rehabilitative reasons. His company commander listed his disciplinary record, to include one summary courts-martial and six incidents of nonjudicial punishment. His company commander stated he did not consider it feasible or appropriate to recommend elimination for unsuitability or to accomplish any other disposition of this case because: * the FSM's performance is characterized by repeated cases of missing formations and an uncooperative attitude toward military superiors * the FSM has stated that he intends to continue this pattern of behavior * the FSM's behavior is not due to an incapacity to become a satisfactory Soldier within the meaning of unsuitability * the FSM's behavior is willful and intentional * there appears to be no grounds for other disposition 8. On 14 August 1973, the FSM's company commander informed him of his proposed recommendation for separation for unfitness under the provisions of Army Regulation 635-200, paragraph 13-12. 9. On 17 August 1973, the FSM acknowledged receipt of the consideration of elimination notice. He further acknowledged his right to present his case before a board of officers; to submit statements in his own behalf; to be represented by qualified legal counsel; and to waive his rights to present his case, submit statements, or be represented. 10. On 28 August 1973, the FSM stated he had been advised by counsel of the basis of the contemplated action to separate him for unfitness under the provisions of Army Regulation 635-200, chapter 13. He waived a personal appearance hearing and consideration of his case by a board of officers. He did not submit statements in his own behalf and waived representation by counsel. He acknowledged he understood he might expect to encounter substantial prejudice in civilian life if issued a general discharge under honorable conditions. He further understood he might be ineligible for many or all benefits as a veteran under both Federal and State laws as the result of an undesirable discharge under conditions other than honorable. 11. On 17 September 1973, the FSM underwent a medical examination for the purpose of separation. Block 77 (Examinee) of his Standard Form 88 (Report of Medical Examination) shows the examining physician marked "is qualified for" elimination and listed no disqualifying defects. There is no evidence in the FSM's available records indicating he was being considered for medical separation. 12. On 12 October 1973 consistent with the chain of command recommendations, the separation authority approved the FSM's discharge for unfitness under the provisions of Army Regulation 635-200, chapter 13, and directed issuance of an Undesirable Discharge Certificate. 13. On 14 November 1973, the FSM stated he underwent a separation medical examination more than 3 working days prior to his departure from the place of separation and marked the box stating "There has been no change in my medical condition." 14. The memorandum from Headquarters, U.S. Army Personnel Center, Oakland, CA, dated 14 November 1973, subject: Review of Discharge, informed the FSM that he was being issued an Undesirable Discharge. He was advised that he may submit an application for review of discharge to the Army Discharge Review Board within 15 years after the effective date of his discharge. The FSM acknowledged receipt and indicated he fully understood he could request a review of his discharge by the Army Discharge Review Board. 15. The FSM was discharged on 14 November 1973 under the provisions of Army Regulation 635-200, chapter 13. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows: * he completed 1 year, 5 months, and 28 days of creditable active military service * he completed 11 months and 2 days of foreign service * he was awarded or authorized the National Defense Service Medal, Armed Forces Expeditionary Medal, and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * he completed 8 years of civilian education * his service was characterized as under conditions other than honorable * he was issued an Undesirable Discharge Certificate 16. There is no evidence showing the FSM petitioned the Army Discharge Review Board for a review of his discharge within that board's statute of limitations. 17. On 7 August 1992, the FSM applied to the ABCMR requesting an upgrade of his discharge under other honorable conditions. He stated he was to be given a medical discharge and needed medical treatment. He was unable to receive medical care from the Department of Veterans Affairs due to the characterization of his military service. 18. On 26 May 1993, the ABCMR denied his request. The Board noted there was no evidence the FSM made any effort to have the alleged error or injustice corrected prior to that application. The alleged error or injustice was, or with reasonable diligence should have been discovered, on 14 November 1973, the date the FSM was discharged. The time to file a request for correction of any error or injustice expired on 14 November 1976. The Board determined the FSM did not present and his records did not contain sufficient justification to conclude that it would be in the interest of justice to grant the requested relief or excuse the failure to apply within the time prescribed by law. 19. On 2 June 1993, the ABCMR informed the FSM that his application was denied under the administrative procedures approved by the Secretary of the Army. He was advised that there would be a basis for reconsideration only if he could present newly discovered relevant evidence that was not previously available for consideration by the Board. If a request for reconsideration is submitted, the ABCMR staff evaluate the evidence and make that determination. Otherwise, the decision was final and the only remaining avenue of appeal would be in a Federal court. 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, the Former Service Member’s (FSM) record of service, the frequency and nature of his misconduct and the reason for his separation. The Board considered the absence of evidence showing that FSM had a condition that warranted medical separation. The Board found insufficient evidence of in-service mitigation to overcome the FSM’s misconduct 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. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 to amend the decision of the ABCMR set forth in Docket Number AC93- 05843 on 26 May 1993. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190005507 7 1