IN THE CASE OF: BOARD DATE: 14 February 2022 DOCKET NUMBER: AR20210009582 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20140014029 on 24 March 2015. Specifically, he requests that his undesirable discharge be upgraded to an under honorable conditions (general) 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) * third-party letters of support (three) FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20140014029 on 24 March 2015. 2. The applicant states he believes his discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action. He was denied emergency leave. He was penalized for writing bad checks and they took his rank and gave him nonjudicial punishment. He was in the Army barracks when the Red Cross called to notify him that his father and aunts were in a car accident and were killed. The only survivor was the driver. He did not know about the death of his father and aunts until 4 January 1962, even though the Red Cross had call on 25 January 1961, no one notified him. His mother called when he was on duty working in the office and he answered the phone and to his surprise it was his mother. She asked him why he didn't come home for his father's and his aunts' funerals. 3. Title 10, U.S. Code (USC), Section 1552a (3)(D) provides that any request for reconsideration of a determination of a Board under this Section, no matter when filed, shall be reconsidered by a Board under this Section if supported by materials not previously presented to or considered by the Board in making such determination. 4. Army Regulation 15-185 (ABCMR) provides that a request for a reconsideration will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The applicant's statement related to the death of his father and aunts and the letters of support were not previously of record. 5. The applicant enlisted in the Regular Army on 30 March 1955. He was discharged for the purpose of immediate reenlistment on 28 March 1958. A copy of the DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for this period of service is not available for review. 6. The applicant reenlisted in the Regular Army on 29 March 1958. 7. Special Court-Martial Order Number 33, issued by 2nd Guided Missile Group, Fort Bliss TX on 17 November 1960, shows he was found guilty of failure to maintain sufficient funds for payment of checks on 26, 27, and 29 September 1960; 1 October 1960 (two specifications); and 3 October 1960. His approved punishment consisted of reduction to pay grade E-3 and a forfeiture of $20 pay for four months. 8. Special Court Martial Orders Number 228, issued by Special Troops, U.S. Army Air Defense Center, Fort Bliss, TX on 18 July 1961, shows he was found guilty of being absent without leave (AWOL) from 19 February 1961 to 8 May 1961. He was sentenced to be reduced to the grade of E-1, confined for six months, and forfeiture of $40 pay for six months. 9. The complete facts and circumstances of his discharge are not available for review with this case. However, his record contains a DD Form 214 that shows he was discharged on 28 September 1961, under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness) with a separation program number of 28B (unfitness – frequent involvement in incidents of a discreditable nature with civil or military authorities) and an under other than honorable conditions (UOTHC) character of service. The DD Form 214 also shows 148 days of lost time. 10. The ABCMR denied the applicant's request for an upgrade on 24 March 2015. 11. The applicant provided three third-party letters of support that described the applicant as the kindest most generous, honest, and hardworking person. He gets along well with others and has an outstanding reputation for diligence and is attentive to the needs of others. He is a man of integrity. 12. The Board should consider the applicant's prior period of honorable service for consideration granting relief in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board found relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published Department of Defense guidance for liberal consideration when reviewing discharge upgrade requests. The Board considered the severity of the misconduct and length of his absence without leave. The Board considered the letters of reference attesting to the applicant’s post-service achievements to weigh in support of a clemency determination. Based on the preponderance of the evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF :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 to amend the decision of the ABCMR set forth in Docket Number AR20140014029 on 24 March 2015. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. 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. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: 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. 3. Army Regulation 635-208, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness. Unfitness included frequent incidents of a discreditable nature with military or civilian authorities. Action to separate an individual were to be taken when, in the judgment of the commander rehabilitation was impractical or was unlikely to produce a satisfactory Soldier. When separation for unfitness was warranted, at the time, an Undesirable Discharge Certificate was normally considered appropriate. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records, on 25 July 2018 [Wilkie Memorandum], 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 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.) AR20210009582 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1