IN THE CASE OF: BOARD DATE: 25 August 2022 DOCKET NUMBER: AR20210014825 APPLICANT REQUESTS: in effect, an upgrade of his undesirable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 26 July 2021 * self-authored statement, 22 February 2021 * National Archives Form 13038 (Certification of Military Service), issued on 28 December 2017 * resume FACTS: 1. The applicant did not file within the three-year period 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: a. He enlisted in the Army 12 days after his 17th birthday and enjoyed his time while serving. He served in the Army for 28 months and the respect and discipline he learned remained with him his entire life and he is thankful for that. Every job he was given he performed. b. There was a fight involving Black Soldiers and new Soldiers coming into his unit. He was not involved in the fight. His First Sergeant disciplined him several times during formation and told him he was going to get him. He requested a transfer, but it did not happen. c. He wishes consideration of his upgrade even if it does not result in an upgrade. 3. The applicant's complete military records are not available for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed that the applicant's records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case. These records consist of files provided from a partial reconstructed record by the National Archives and Records Administration and from the Applicant. 4. The National Archives and Records Administration provided the applicant a copy of NA Form 13038, issued on 28 December 2017. This document shows: a. He entered active duty on 15 March 1956 at age 17. b. On 18 July 1958, he was separated with an undesirable discharge after having completed 2 years, 4 months, and 4 days of active service. c. His grade at the time of his separation was recruit (private)/E-1. 5. The facts and circumstances leading to a discharge from the U.S. Army are not contained in his available records. 6. He provides copy of an undated résumé showing his work accomplishments from July 1965 to August 2001. 7. The applicant previously requested upgrades of his undesirable discharge on 25 April 2011 and on 18 March 2019 but those applications were closed because of insufficient documentation to review his case. 8. The applicant provided evidence and personal statements in support of his application that the Board should consider in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, the NA Form 13038 he provided, and whether to apply clemency. Due to the lack of service records, the Board found insufficient evidence of in-service mitigating factors and found the résumé the applicant provided insufficient in support of a clemency determination. Based on a preponderance of the evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. 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, United States 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 ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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 635-208 (Personnel Separations – Discharge – Undesirable Habits and Traits of Character), in effect at the time (21 May 1956), provided procedure and guidance in the elimination from the service of enlisted personnel having undesirable habits and traits of character. a. Paragraph 1b provided an individual will be discharged from the service under these regulations when it is clearly established that for any of the causes mentioned below, an individual demonstrates that he is undesirable for further retention in the military service and his rehabilitation is considered impossible after reasonable attempts to accomplish same have failed. b. Paragraph 1c provided recommendation for discharged because of undesirability will be made in the case of an enlisted person who gives evidence of habits and traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, or misconduct; repeatedly commits petty offenses not warranting trail by courts-martial, is a habitual shirker, is recommended for discharge by a disposition or other board of medical officers. c. Paragraph 5 provided for the reason and authority for discharge. The reason and authority for discharge to be entered in item 8 of the DD Form 214 ( will be, if discharged because of undesirable habits or traits of character, AR 635-208, SPN 78. d. Paragraph 6 provided for reduction upon discharge. Upon determining that an enlisted person is to be discharged from the service with an undesirable discharge under the provisions of these regulations, the authority accomplishing the discharge will, if the individual concerned is in a grade above E-1, automatically reduce such individual to grade E-1 as prescribed in section V, Army Regulation 624-200. e. Paragraph 7 provided the form of discharge certificate to be given. When discharged because of undesirable habits or traits of character, a DD Form 258A (Undesirable Discharge Certificate) will be furnished. 4. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, defines the character of service for administrative discharges. a. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. (1) Only the honorable characterization may be awarded a Soldier upon completion of his/her period of enlistment or period for which called or ordered to AD or ADT or where required under specific reasons for separation, unless an entry-level status separation (uncharacterized) is warranted. (See para 3–9a and chap 11.) (2) When a Soldier is discharged before ETS for a reason for which an honorable discharge is discretionary, the following considerations apply: (a) Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). (b) A Soldier will not necessarily be denied an honorable discharge solely by reason of the number of convictions by court-martial or actions under the UCMJ Article 15. Conviction by a general court-martial or by more than one special court- martial does not automatically rule out the possibility of awarding an honorable discharge. (c) An honorable discharge may be furnished when disqualifying entries in the Soldier’s military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service. It is a pattern of behavior and not the isolated incident that should be considered the governing factor in determination of character of service. (d) Unless otherwise ineligible, a Soldier may receive an honorable discharge if he/she has, during his/her current enlistment, period of obligated service, or any extensions thereof, received a personal decoration. b. General discharge: (1) 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. (2) A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization. It will not be issued to Soldiers solely upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to AD. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210014825 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1