ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 September 2019 DOCKET NUMBER: AR20190005986 APPLICANT REQUESTS: The applicant requests an upgrade undesirable 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 (Report of Separation from the Armed Forces of the United States) * Personal Statement * History of Medical Appointments 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 that he believes he was singled out because he was a black man in a white man’s Army and his company commanders, being raised in the south under Jim Crow laws, singled him out because he was a well-spoken, educated black man. 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. The National Personnel Records Center provided a DD 214, a copy of administrative board proceedings as well as a portion of his medical records for the Boards review. 4. The applicant entered the Army on 13 May 1953 and awarded military occupational specialty (MOS) 11B (Heavy Weapons Infantryman). 5. A review of the applicant’s records shows that he received two summary and one special courts-martial between March and April of 1954: * 23 March 1954-Absent from bugler School; sentence of restriction for 30 days and forfeiture of $35.00 * 29 April 1954-Disrespect in language to a Noncommissioned Officer (NCO); sentence of confinement at hard labor for 1 month and forfeiture of $25.00 * 8 September 1954-Failure to obey a lawful order from an NCO; sentence of confinement at hard labor for 6 months and forfeiture of $28.00 6. On 25 February, the applicant was notified that he would appear before a board of officers to determine whether he should be discharged from the service prior to his normal expiration term of service under the provisions of AR 615-368 for unfitness. The command initiated this board due to his courts-martials, habitually committing minor offenses such as uniform violations, tardiness and shirking of duty, and failure to improve conduct and duty performance after being assigned to different platoons. a. The board interviewed 2 officers, the applicant’s immediate supervisor, and a co- worker. The 2 officers spoke of the applicants infractions and alluded to the fact that the applicant was unfit for continued military service. However, the applicant’s immediate supervisor and co-worker painted a different picture of the applicant. They spoke highly of his dependability and being the best bugler and hardest worker within the bugle platoon. b. The applicant provided an unsworn statement to the Board of Officers that defended his position of the alleged infractions stated by his command. He states, he feels that what he is being accused of is in the past and he served in the stockade for this. He went to the stockade and came back a soldier. Since the stockade, he feels that he has done nothing wrong and received no punishment. He stated that the reasons he went on sick call was because he had serious issues. (Of note, the applicant provided a detailed medical appointment record supporting this assertion). He feels that he was passed over for promotion and kicked around since being in Dog Company. c. The Board heard all arguments and concluded that the applicant’s habits and traits of character which render retention in the service undesirable as manifest by repeated venereal infections, repeated commissions of petty offenses, and misconduct. 10. On 19 May 1955, the applicant was medically cleared for separation. As a result, on 20 May 1955, the applicant was discharged. His character of service was undesirable. He served a total of 1 year, 9 months and 6 days, of which 1 year, 3 months, and 14 days were Foreign Service. 11. The applicant provided a self-authored statement that provides details to mitigate the ruling of the board. The applicant states that the uniform violations, tardiness and shirking duty testimonies contradicted what his supervisor said. His supervisor considered the applicant a “fine soldier”. The facts are that he is a black that volunteered for the drum and bugle corps and was selected based on his talent. His supervisor said he was the best bugler in the platoon. His commander and lieutenants were from the south and never thought of him as a human being. He was never disrespectful, but did his duty with racism at every corner. He feels that he was an excellent teacher and excelled at his additional duty as a radio operator. He felt he blossomed when he was in positions that showcased his talents as a typist or bugler. 12. The applicant asserts, in effect, that he was discharged because of his race and Jim Crow laws. His records shows that he received 2 summary and one special courts- martial. Upon release from the stockade, he was transferred to the bugle team, where his supervisor said he was the best bugler and had not had any trouble out of the applicant. He appeared before a Board of Officers and was recommend for discharge due to unfitness. 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: After review of the application and all evidence, the Board determined that there is sufficient evidence to grant relief and upgrade the applicant’s discharge characterization to general, under honorable conditions. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, and found the applicant’s statement that he experienced racial bias to be compelling as he served in the Army during Jim Crow segregation and his supervisors singled him out because he was a well-spoken black man. The Board discussed that prior to arriving at his unit, the applicant received all excellent ratings and it was only after arriving at his duty station, he began to receive punishment for simple misconduct, including not attending bugler school and having on civilian socks when in uniform. By current standards, the punishment the applicant received for simple misconduct was harsh. Therefore, the Board found that the applicant’s case warrants clemency in that the applicant faced an injustice, which mitigated the misconduct resulting in the discharge characterization. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for 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 discharge characterization on his DD Form 214, dated 20 May 1955, to “General, Under Honorable Conditions.” X CHAIRPERSON 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 615-368, in effect at the time, stated, when a Soldier demonstrated he was totally unfit for further retention in military service for any of the below listed reasons, and rehabilitation was impractical, the commander was to recommend the Soldier for discharge and require him to appear before a board of officers. a. The following were reasons for separation under this regulation: * habits or traits of character manifested by antisocial or amoral behavior, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, or misconduct * unclean habits * repeatedly committing petty offenses not warranting trial by courts-martial * habitual shirker * recommended for discharge by a medical examiner's board because of psychopathic personality disorder b. The DD Form 214 for Soldiers discharged for unfitness had to include the following remark in item 8: "AR 615-368 SPN 78." 3. AR 615-360, 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 "very good" * efficiency ratings of at least "excellent" * 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. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. 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//