BOARD DATE: 24 April 2020 DOCKET NUMBER: AR20190010689 APPLICANT REQUESTS: an upgrade of the former service member's (FSM's) under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * FSM's reconstructed service record from the National Personnel Records Center (NPRC) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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 the FSM was discharged due to homosexuality; however, records indicate the FSM was discharged due resignation in lieu of trial by court-martial. 3. The applicant's complete military records are not available for review. A fire destroyed approximately 18 million service members' records at NPRC in 1973. It is believed his records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case. 4. The applicant's separation documents are not available for review; however, his reconstructed record contains a memorandum, dated 24 June 1947, in which the FSM voluntarily tendered his resignation from the Army for the good of the service and his separation from the Army would be considered UOTHC. 5. On 25 July 1947, the applicant was charged with attempted sodomy, conduct unbecoming, and assault. 6. A Neuropsychiatric report, dated 27 July 1947, stated the FSM had no condition to warrant medical attention or evacuation for neuropsychiatric reasons. The FSM was not satisfactory officer due to a pathological personality type, sexual deviate, true male homosexual. 7. On 27 July 1947, an investigating officer who investigated the charges against the FSM stated, in part: a. It appeared the charge of assault may be sustained before a general court- martial. The sustaining of a charge of assault with intent to commit sodomy is doubtful. Conduct unbecoming an officer and a gentleman can be proven. The pretrial investigating officer's report recommends trial by general court-martial in that the facts of the case can best be determined by a competent court due to the inability of the investigating officer, with the available evidence, to completely determine those facts in detail. Whether convicted or not of any or all specifications it is clear that the officer is "morally unworthy to remain a member of the honorable profession of arms." b. Due to the failure of available witnesses to agree on specific points and general vagueness with which the witnesses recall the events leading to the submission of charges it will probably be difficult if not impossible to establish proof of the allegations before a general court-martial. Since conviction under the 95th article of war makes dismissal mandatory and the elimination of this officer from the service at the earliest possible time is desirable, he recommended the FSM 's resignation for the good of the service be accepted immediately and the charges be dropped. 8. On 5 August 1947, an authorized official approved the FSM's resignation. 9. On 16 November 1951, the Army Discharge Review Board (ADRB) considered the evidence of record and found the FSM was properly separated under the provisions of the regulations in effect at the time; the character of the separation was supported by the evidence of record; and no additional evidence of sufficient weight and credibility to warrant a change in the type or nature of the FSM's separation had been presented before the ADRB. 12. Army Regulation 605-275 (Commissioned Officer, Resignation), in effect at the time, provides an officer whose conduct has rendered him triable by court-martial for an offense punishable by dismissal may tender his resignation for the good of the service in lieu of trial by court-martial. 13. Special Regulation 605-290-1 (Officers Separation Certificates), in effect at the time, prescribes issuance of an UOTHC Certificate for officers who resign for the good of the service in lieu of trial by court-martial. 14. In reaching its determination, the Board can consider the applicant's petition, his statements, and his service record, in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, the FSM’s record of service, the belief that his records were lost or destroyed in the records center fire, the charges in the record, the investigating officer’s report, the Neuropsychiatric report and the FSM’s request for resignation. The Board found insufficient evidence to determine the full nature of the alleged misconduct and insufficient evidence of mitigating factors to overcome the reason for the applicant’s resignation. Based on a preponderance of evidence, the Board determined that the applicant’s 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 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, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 605-275 (Commissioned Officer, Resignation), in effect at the time, provides an officer whose conduct has rendered him triable by court-martial for an offense punishable by dismissal may tender his resignation for the good of the service in lieu of trial by court-martial. 3. Special Regulation 605-290-1 (Officers Separation Certificates), in effect at the time, prescribes issuance of an UOTHC Certificate for officers who resign for the good of the service in lieu of trial by court-martial. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to DRBs and 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) AR20190010689 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1