IN THE CASE OF: BOARD DATE: 13 July 2020 DOCKET NUMBER: AR20190012809 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge or an honorable discharge. 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 27 September 2019 * DD Form 214 (Armed Forced of the United States Report of Transfer or Discharge), for the period ending 6 May 1964 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, in effect, he was 19 years old at the time he went absent without leave (AWOL) with another Soldier in Hawaii, and he sincerely regrets that decision. He is now 74 years of age and he realizes how serious the offense was and wishes he could turn back the hands of time. He has been an outstanding citizen since his discharge. He got married and had four children. He became a truck driver and also made tire molds for his entire work career up until the age of 66, when he retired due to medical issues. He has had no issues with the law since his discharge. He hopes the Board will take everything into consideration regarding the upgrade to his character of service. He has a terminal illness of pulmonary fibrosis and requests an expedited decision. 3. The applicant enlisted in the Regular Army on 24 October 1962. 4. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 18 October 1963, for being AWOL from on or about 3 October 1963 to on or about 7 October 1963. 5. Before a special court-martial on or about 14 February 1964, the applicant was tried and convicted of being AWOL, from on or about 8 January 1964 through on or about 16 January 1964. His sentence included confinement at hard labor for four months, forfeiture of $55.00 for four months, and reduction to the grade of private/E-1. The sentence was approved on 15 February 1964. 6. A memorandum from the applicant’s Commander, dated 25 February 1964, noted that the applicant showed a lack of concern for his actions and only seemed worried over possible legal consequences. His work was below standards and he did not respond to counselling. He presented an uncomprehending and immature manner and expressed no real desire to bring his work up to standard. Prior to two movements to a training area, the applicant influenced his friend, resulting in them both being AWOL and missing movement. The applicant’s work and bearing were unacceptable and his conduct was far below the standards demanded by the Army. 7. The applicant's service records contains the following documentation: a. A DA Form 19-24 (Statement), dated 18 March 1964 – Sergeant (SGT) B stated that he had to stay on the applicant regarding his appearance and his lack of interest in doing his job. The applicant went AWOL from the (Pohakuloa Training Area) and left his tank crew which hurt the mission. The SGT stated that the applicant should be eliminated from the service. b. A DA Form 19-24, dated 18 March 1964 – Sergeant First Class (SFC) P stated that he had to constantly correct the applicant regarding his personal appearance on several occasions. The applicant’s attitude, initiative and personal appearance was very poor shows with very little interest in anything he does while on the job training. c. A DA Form 19-24, dated 6 April 1964 – First Sergeant (1SG) Y Jr., stated that the applicant had been counseled by him multiple times for his appearance, being AWOL, and missing movement. The applicant had a definite disregard toward those in the Army. The applicant lured other Soldiers into doing wrong. The 1SG stated the applicant should be eliminated from the service for unfitness. 8. The notification memorandum is not available with this case; however, the applicant consulted with counsel on 27 March 1964 and acknowledged receipt of the notification memorandum. He was advised of his right to be represented by counsel, he waived his rights to have his case heard by a Board of Officers, and he declined to submit statements in his own behalf. 9. The applicant underwent a psychiatric evaluation on 3 April 1963. He was psychiatrically cleared for any administrative action deemed necessary. 10. The applicant's immediate commander formally recommended the applicant's separation from service on 10 April 1964, under the provisions of Army Regulation 635- 208 (Personnel Separations – Discharge – Undesirable Habits and Traits of Character), by reason of unfitness. 11. The unexecuted portion of the applicant’s confinement at hard labor was remitted upon his actual embarkation to the continental U.S. for discharge, under the provisions of Army Regulation 635-208. 12. The applicant was discharged on 6 May 1964. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-208, and his service was characterized as UOTHC. 13. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade to his service characterization. The ADRB considered his request on 13 August 1974, determined he was properly discharged, and denied his request for relief. 14. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense 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, the reason for his separation, and whether to apply clemency. 2. The Board noted that, while the applicant certainly exhibited a pattern of misconduct that rendered him unfit for continued service, clemency is warranted based on his statements regarding his post-service conduct. Based on a preponderance of evidence, the Board determined the applicant's character of service should be upgraded to under honorable conditions (general). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 reissuing his DD Form 214 for the period ending 6 May 1964 to show his service was characterized as under honorable conditions (general). 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 635-200, currently in effect, governs the policies and procedures 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. c. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. d. Chapter 14 [then in effect] established policy and prescribes procedures for separating members for fraudulent entry cases and provides for the administrative disposition of enlisted personnel for misconduct by reason of fraudulent entry into the Service. (1) Paragraph 14-5 provides that an incident of fraudulent entry is the procurement of an enlistment, induction, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known, might have resulted in rejection. Any incident which meets the foregoing may be cause for discharge for fraudulent entry. (2) Paragraph 14-5c provides that when an individual who concealed his conviction by civil court of a felonious offense normally will not be considered for retention. Specific details of circumstances in a case may be obtained however by direct communication with the appropriate civil law enforcement agency, other than the FBI, by the commander concerned. When information is required from both sources, the inquiries will be dispatched concurrently. 3. Army Regulation 635-208, then in effect, set forth the basic authority for separation of enlisted personnel for unfitness. Individuals would be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warranted a general or honorable discharge, when it had been determined an individual's military record was characterized by one or more of the following: (a) frequent incidents of a discreditable nature with civil or military authorities; (b) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault upon a child, or other indecent acts or offenses; (c) drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana; (d) an established pattern for shirking; or (e) an established pattern showing dishonorable failure to pay just debts. 4. 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) AR20190012809 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190012809 5 ABCMR Record of Proceedings (cont) AR20190012809 4