IN THE CASE OF: BOARD DATE: 28 January 2020 DOCKET NUMBER: AR20190012625 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 8 July 2019, with personal statement * a letter of thanks from the Department of Police for the City of, dated 13 August 1967 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); 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 he believes he was treated completely unfairly and he did nothing to deserve the type of discharge he received. In his statement: a. He states at 74 years old he just found that he has a dishonorable discharge. He believes he was a victim of circumstance and did nothing to deserve this type of discharge. He never received a copy of his discharge document, any explanation, or any kind of paperwork. b. The applicant recounts his military history and post-service employment: (1) At his first duty station, he had words with a enlisted Soldier (Specialist Four) who obviously didn't like him; being a teenager and immature, he refused an order, was court martialed, and spent several months locked up. (2) At his second duty station, he received nonjudicial punishment for coming back to post late. (3) He was sent to the big island of for temporary duty and a short time after returning, he and several other Soldiers were called into the first sergeant's office and asked if they intended to reenlist. The applicant said he did not and a little over a week later, he received orders to California where he was discharged, which he thought was strange. c. After the military, he was married raised two of his own children and two troubled teens, all very productive tax paying citizens. He had a small business and commercial property that was fairly successful, which he sold after eight years. He then went to work for the Burlington Northern railroad and retired after almost 27 years of service. d. Shortly after he got home he watched a local policeman get shot to death, he ran down the shooter, an escapee from, and held him for police, receiving a letter of appreciation from the police. 3. With parental consent, the applicant enlisted in the Regular Army on 7 September 1962. 4. Before a special court-martial on or about 23 May 1963, at the Oakland Army Terminal, the applicant was found guilty of missing overseas movement, disobeying a lawful order from a commissioned officer, disobeying a lawful order from a noncommissioned officer (NCO), and using disrespectful language toward an NCO. His sentence included confinement for six months. The unexecuted portion of his confinement was remitted on 23 August 1963, reducing the period of confinement to 107 days. 5. The applicant received nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * on 29 January 1964, for using disrespectful language toward a Specialist Five in the execution of his duties * on 6 February 1964, for operating a motor vehicle in a careless manner, speeding, on or about 3 February 1964 * on 28 February 1964, for using disrespectful language toward a staff sergeant (the applicant appealed the NJP, denying he made the statement and if he did it is not a crime; however, the appeal was denied) 6. The applicant was afforded a psychiatric evaluation on 9 March 1964. The attending psychiatrist found that he suffered from a chronic, severe emotional instability reaction. He recommended the applicant be administratively separated. 7. The applicant received NJP on 23 March 1964, for conspiring with two other Soldiers to squirt lighter fluid on four Soldiers while they were sleeping and light the fluid causing second degree burns to one individual. His sentence was 30 days restriction and 30 days of extra duty. The applicant appealed the NJP, contending that while he did set fire to one of the Soldier's socks, he did not conspire to set fire to the other Soldiers and in fact woke them and attempted to put out the fires. 8. The commanding officer evaluated the applicant's appeal in light of his other punishments, restrictions, forfeiture of pay and pending separation; he determined that the additional punishment was unduly harsh and reduced it to 7 days of extra duty. 9. The available record does not include any of the applicant's separation processing documents. 10. The applicant was discharged on 23 April 1964. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-208 (Personnel Separations ? Discharge - Undesirable Habits and Traits of Character), for unfitness, and his service characterization was UOTHC. His DD Form 214 further shows he was discharged in the rank/grade of private/E-1. 11. The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition. 12. The City of Police Department commended the applicant on his assistance in the restraining and securing of one of three escaped convicts who shot and killed a detective. 13. The Board may consider the applicant's petition and statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, and the character and reason for his separation. The Board noted the facts presented above. The Board noted that the applicant was not issued a dishonorable discharge but was issued a more lenient under other than honorable conditions discharge. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 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. 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 three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 4. Army Regulation 635-208, in effect at the time, set forth the basic authority for separation of enlisted personnel having undesirable habits and traits of character. Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier. When separation for unfitness was warranted, an undesirable discharge was normally issued. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. a. 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, Boards 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. b. 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) AR20190012625 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190012625 7 ABCMR Record of Proceedings (cont) AR20190012625 5