IN THE CASE OF: 

		BOARD DATE:  22 July 2022

		DOCKET NUMBER: AR20210013362


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions 
discharge to a fully honorable discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Armed Forces of the United States Report of Transfer or 
Discharge), ending on 20 June 1964 and on 15 May 1969 
*	Extract Copy of Morning Report
*	DD Form 458 (Charge Sheet)
*	Transmittal of Court-Martial Charges 
*	Commander Statement 
*	Guilty Verdict
*	Record of Trial 

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 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 feels that the Commanding Officer, First Lieutenant (1LT) , 
had it in for him. The LT let him know that he was not happy with his (the applicant’s) 
performance, but there never was any written documentation of those facts. After the 
trial, he and his father contacted the office and there were no records stating there ever 
was any problem with him. He has served his time, and here 55 years later, he is asking 
for an upgrade. 

3.  The applicant’s service records are not available for review. An exhaustive search 
was conducted to locate his service records, but they could not be found. However, 
there were sufficient documents remaining in a reconstructed record or provided by the 
applicant to conduct a fair and impartial review of this case. This case is being 
considered using reconstructed records. Review of the applicant’s available service 
records shows:

	a.  He enlisted in the U.S. Army Reserve (USAR) around September 1963. He 
entered active duty for training (ACDUTRA) on 20 January 1964 and completed training 
for award of military occupational specialty 051.10, Intermediate Speed Radio Operator. 

	b.  He was honorably released from ADT on 20 June 1964. His DD Form 214 for this 
period shows he completed 5 months and 1 day pf active service. He was assigned to 
Company B, 844th Engineer Battalion, Chattanooga, TN, a troop program unit of the 
USAR. 

	c.  On or about 26 January 1965, Headquarters, Fort Jackson, SC, published 
Special Order Number 22 ordering the applicant to active duty for 45 days, attached to 
the 3rd Training Brigade, Fort Jackson, SC.

	d.  The applicant was initially reported as assigned not joined and then absent 
without leave effective 29 January 1965 (Morning Report). However, he was 
apprehended by military authorities in , on 19 February 1965. He was placed in 
confinement at the Post Stockade,  until 24 February 1965.  

	e.  On 25 February 1965, the commander of Company C, 11th Battalion, 3rd 
Training Brigade, Fort Jackson submitted a statement wherein he stated the applicant 
was assigned to this unit on 28 January 1965. On or about 29 January 1965, it was 
reported he was absent from formation. He did not report back to duty until 25 February 
1965. 

	f.  On 20 March 1965, court-martial charges were preferred against the applicant for 
two specifications of being absent without leave (AWOL) from 29 January to 19 
February 1965 and from 1 March to 19 March 1965. His chain of command 
recommended trial by a special court-martial. 

	g.  On 26 March 1965, the applicant was found guilty and was convicted by a special 
court-martial of all charges and specifications listed above. The court sentenced him to 
confinement at hard labor for three months, forfeiture of $55.00 per month for 3 months, 
and reduction to private/E-1. 

	h.  On 26 March 1965, the convening authority approve the sentence and ordered it 
executed but the execution of the portion of the sentence pertaining to confinement at 
hard labor for 3 months is suspended for 3 months. 

4.  On 26 June 1968, he was ordered to active duty from the USAR for 2 years. 
However, on 28 June 1968, he was reported in an AWOL. He remained in this status 
until 3 April 1969. 

	a.  The complete facts and circumstances surrounding the applicant’s discharge 
action are not available for review with this case. 

	b.  However, his record contains, or he provides a DD Form 214 that shows:

		(1) He was discharged on 15 May 1969, under the provisions of Army Regulation 
(AR) 635-212 (Personnel Separations - Discharge Unfitness and Unsuitability), 
separation program number (SPN) is 38B (shown as 386) (Unfitness) with a character 
of service of under conditions other than honorable.  

		(2)  He completed 1 month and 10 days of active service during this period and 
he had 280 days of lost time. He held the rank/grade of private/E-1 with an effective 
date of rank of 15 May 1969.

5.  There is no indication he applied to the Army Discharge Review Board for an 
upgrade of his discharge within that board’s 15-year statute of limitation.

6. By regulation (AR 635-212) provided that individuals would be discharged due to 
unfitness when their records were characterized by one or more of the following:  
frequent incidents of a discreditable nature with civil or military authorities, sexual 
perversion, drug addiction, an established pattern of shirking, and/or an established 
pattern showing dishonorable failure to pay just debts. An undesirable discharge was 
normally issued. 

7.  By regulation (AR 15-185), paragraph 2–9 (Burden of proof), 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.

8.  In reaching its determination, the Board can consider the applicant’s petition and her 
service record in accordance with the published equity, injustice, or clemency 
determination guidance.



BOARD DISCUSSION:

The Board carefully considered the applicants request, supporting documents, evidence 
in the records 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, the reason for his separation and whether to 
apply clemency. The Board found insufficient evidence of in-service mitigating factors 
for the misconduct and the applicant provided no evidence of post-service 
achievements or letters of support to weigh a clemency determination.  Based on a 
preponderance of evidence, the Board determined that the character of service the 
applicant received upon separation was not in error or unjust. 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, U.S. 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 (AR) 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR.  
The Board begins its consideration of each case with the presumption of administrative 
regularity, which is that what the Army did was correct. The Board not an investigative 
body and decides cases based on the evidence that is presented in the military records 
provided and the independent evidence submitted with the application. The applicant 
has the burden of proving an error or injustice by a preponderance of the evidence.

3. Army Regulation 635-212, then in effect, set forth the policy for administrative 
separation for unfitness. It provided that individuals would be discharged by reason of 
unfitness when their records were characterized by one or more of the following:  
frequent incidents of a discreditable nature with civil or military authorities, sexual 
perversion, drug addiction, an established pattern of shirking, and/or an established 
pattern showing dishonorable failure to pay just debts. This regulation also prescribed 
that an undesirable discharge was normally issued unless the particular circumstances 
warranted a general or an honorable discharge.

4.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) currently 
in effect, sets forth the criteria for the separation of active duty enlisted personnel. 

	a.  An 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.  

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//