IN THE CASE OF: BOARD DATE: 11 August 2021 DOCKET NUMBER: AR20210006065 APPLICANT REQUESTS: The applicant requests the Board upgrade the undesirable discharge of her father, a deceased former service member (FSM), to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant's birth certificate * Army Review Boards Agency (ARBA) Administrative Close letter * Two ARBA letters * Applicant's letter to ARBA * Applicant's email correspondence with ARBA * Applicant's email correspondence with the National Personnel Records Center (NPRC), with Notice Regarding Records Reconstruction Process * FSM's death certificate * Standard Form 180 (Request Pertaining to Military Records) * NPRC letter * NA (National Archives) Form 13038 (Certificate of Military Service) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interests of justice to excuse the applicant's failure to timely file. 2. The applicant states her father received an undesirable discharge because he failed to have liability insurance for a car he was racing on base; she argues such a punishment was too harsh, and the most her father should have received was a traffic ticket. The applicant's father died in 1968, and what she knows of the circumstances of her father's discharge comes from her mother; the applicant was a child when all this transpired. In addition to submitting her birth certificate and her father's death certificate, the applicant provides an NA Form 13038, which states the FSM served in the Regular Army from 27 January 1954 until 26 January 1957; the form additionally shows the FSM received an under other than honorable conditions character of service and held the rank of private at separation. 3. The FSM's complete military records are not available for review. A fire at the NPRC destroyed approximately 18 million service members’ records in 1973; the Army personnel records affected dated between November 1912 and January 1960, and it is believed the FSM's records were lost or destroyed in that fire. It is likely the applicant's records were lost or destroyed in that fire; however, NPRC provided a reconstructed record, which contains a form from the Veterans Administration (i.e. VA, later renamed the Department of Veterans Affairs) and the FSM's separation order. a. VA Form VB3-3145 (Notice of Assignment of C-Number), dated 11 April 1957, shows the FSM filed a VA claim in 1957; the form lists the FSM's period of service as 27 January 1954 to 26 January 1957. b. Special Orders, dated 24 January 1957 and issued by the U.S. Army Artillery and Guided Missile Center, Fort Sill, OK, directs the FSM's undesirable discharge, effective 26 January 1957. The FSM's rank/grade is PV1/E-1; the separation authority is Army Regulation (AR) 635-208 (Personnel Separations – Discharge – Undesirable Habits or Traits of Character); and the separation program number (SPN) is "386" (Habitual Shirker). 4. The applicant requests the Board to upgrade her father's undesirable discharge under other than honorable conditions; she argues her father received this harsh character of service because he did not have liability insurance for a car he was racing on post. a. During the FSM's era of service, commanders could initiate separation action, under the provisions of AR 635-208, against Soldiers who displayed undesirable habits and traits of character; the regulation listed six criteria for separation, which included the habitual shirking of duty. (1) Once a commander recommended a Soldier for separation, the separation authority directed the convening of a board of officers. (2) After considering evidence, in accordance with the requirements of AR 15-6 (Boards, Commissions, and Committees – Procedural Guide for Investigating Officers and Boards of Officers in Conducting Investigations), the board could recommend the Soldier's discharge, due to undesirable habits or traits of character; separation based on unsuitability; or retention in the service. (3) Upon receipt of the board's findings and recommendations, the separation authority could approve or disapprove the board results, or direct other disposition. Upon the separation authority's approval, orders directed the Soldier's separation and automatic reduction to the lowest enlisted grade (i.e. PV1). b. In reaching its determination, the Board can consider the applicant’s petition, her arguments and assertions, and the FSM's available service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. Board members noted that the absence of the FSM's separation packet means Board members are unable to determine the specific circumstance(s) that led to his undesirable discharge; however, despite the unavailability of the FSM's separation packet, and in light of the record copy of his separation order, the Board presumes the FSM's leadership completed his separation properly. 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. Based upon a preponderance of evidence, time passed since his discharge, and guidance for consideration of discharge upgrade requests, the Board determined that although his service did not rise to the level required for an honorable discharge, the character of service the applicant received upon separation seems too harsh and should be corrected from undesirable to general, as a matter of clemency. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF XX: XX: XX: GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing him a Certification of Military Service reflecting a General, Under Honorable Conditions character of service. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge to fully honorable. 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 635-208, dated May 1956, prescribed policies and procedures for the separation of enlisted personnel who displayed undesirable habits and traits of character. When warranted due to unfitness, separation authorities issued Soldiers an undesirable discharge. a. Commanders recommended a Soldier to appear before a board of officers for an undesirability discharge when the enlisted Soldier: * demonstrated an antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct; or * possessed unclean habits, including repeated venereal infections; or * repeatedly committed petty offenses not warranting trial by court-martial; or * was a habitual shirker; or * demonstrated behavior or participated in activities/associations which tended to show he was not reliable or trustworthy b. Boards convened under this regulation consisted of three officers, and the board was required to follow the rules of procedure and evidence as outlined in AR 15-6 (Boards, Commissions, and Committees – Procedural Guide for Investigating Officers and Boards of Officers in Conducting Investigations). The board could recommend the Soldier's discharge, due to undesirable habits or traits of character; separation based on unsuitability; or retention in the service. c. Upon receipt of the board's findings and recommendations, the separation authority could approve or disapprove the board results, or direct other disposition. Upon the separation authority's approval, orders directed the Soldier's separation and automatic reduction to the lowest enlisted grade (i.e. PV1). 3. AR 635-200 (Personnel Separations – General Provisions for Discharge and Release), in effect at the time, provided the following guidance with regard to issuance of honorable and general discharges: a. Honorable Discharge. (1) Separation authorities furnished an honorable discharge to Soldiers who met the following qualifications; the Soldier had to have: * Conduct ratings of at least "Good"; * Efficiency ratings of at least "Fair"; * No general court-martial convictions; and * No more than one special court-martial conviction (2) Notwithstanding the foregoing criteria, a Soldier could still receive an honorable character of service, despite the presence of disqualifying entries, when the separation authority determined the Soldier's subsequent honest and faithful service, performed over a greater period, outweighed those disqualifying entries. b. General Discharge. Separation authorities awarded a general discharge under honorable conditions to Soldiers whose service did not qualify them for an honorable discharge. 4. 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. 5. AR 15-185 (ABCMR), paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity, which means the Board presumes what the Army did was correct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210006065 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210006065 1 ABCMR Record of Proceedings (cont) AR20210006065 1