IN THE CASE OF:  

		BOARD DATE:  21 November 2022

		DOCKET NUMBER:  AR20220004559


APPLICANT REQUESTS:  An upgrade of his under honorable conditions (general) 
discharge to an honorable discharge, and personal appearance before the Board via 
video/telephone.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:  

*	DD Form 149 (Application for Correction of Military Record)
*	DD Forms 214 (Armed Forces of the United States Report of Transfer or 
Discharge), for the period ending 16 November 1962
*	2021 Veterans Tax Credit, denial letter
*	Excerpt copy of Title V (Taxation), Chapter 72 (Persons and Property Liable for 
Taxation), Property Taxes Section 72:28
*	Excerpt copy of () (Permanent Application for Property Tax Credits/Exemptions

FACTS:  

1.  The applicant did not file within the 3-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 he needs an upgrade to be eligible for Veterans Tax Credit. His 
city is suddenly securitizing his records and denying him the Veterans Tax Credit, which 
he has received for many years. 

3.  The applicant's service record shows:  

   a.  On 18 September 1961, the applicant enlisted into the Regular Army for a 3-year 
service obligation. He was 17 years old, and his mother consented to his enlistment. 

   b.  The applicant completed his initial entry training and subsequently reported to his 
unit at Fort Carson, CO, on 24 February 1962. 

   c.  His DA Form 24 (Service Record) shows the applicant maintained excellent 
efficiency ratings until he reported to his unit on 25 August 1962, where separation was 
initiated in less than 60 days.
   
   d.  On 15 October 1962, the applicant underwent a psychiatric examination. The 
examining psychiatrist diagnosed him with chronic passive-aggressive reaction, and 
determined he was mentally responsible, both to distinguish right from wrong and to 
adhere to the right. He also noted there were no disqualifying mental or physical defects 
that would warrant separation through medical channels and recommended the 
applicant for separation under the provisions of Army Regulation 635-209 (Personnel 
Separations – Discharge – Unsuitability). 

   e.  On 24 October 1962, the applicant was counseled and advised by his 
commander that he was being recommended for discharge under the provisions of 
Army Regulation 635-209, by reason of unsuitability. He was fully aware that he may be 
issued a general discharge. He did not desire to be represented by counsel, or to 
appear before a board of officers; and elected not to submit a statement in his own 
behalf. 

   f.  On 30 October 1962, the applicant's commander formally recommended his 
separation from service, under the provisions of Army Regulation 635-209, for 
unsuitability. As the reasons his commander noted, the applicant's inability to adjust to 
military service, rehabilitative measures and available medical and psychiatric measures 
had failed to correct the issues. He also includes three statements to support his 
request from the applicant's Platoon Sergeant, First Sergeant, and former Commander.

   g.  The applicant's intermediate commander recommended approval of his 
separation. The separation authority's approval is not available for review. However, a 
memorandum completed by the Fort Carson Adjutant General's Office, shows the 
applicant was ordered separated under the provisions of Army Regulation 635-209, for 
unsuitability, with a general discharge.

   h.  On 9 November 1962, the applicant underwent a separation examination, 
wherein he noted he was in good health. The examining physician found him qualified 
for separation.

   i.  On 16 November 1962, the applicant was discharged, under the provisions of 
Army Regulation 635-209, with Separation Program Number "264" by reason of 
unsuitability. His service was characterized as under honorable conditions.

3.  The applicant provides his Tax Credit denial letter, an excerpt of Title V, Chapter 72 
for approved tax exemptions, and.

4.  Army Regulation 635-209, in effect at the time, set forth the policy and prescribed 
procedures for eliminating enlisted personnel for unsuitability. Evaluation by a medical 
officer was required and, when psychiatric indications were involved, the medical officer 
must have been a psychiatrist, if one was available. A general or an honorable 
discharge was considered appropriate.  

5.  Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) 
does not mandate relief, but rather provides standards and principles to guide Boards in 
application of their equitable relief authority to ensure each case will be assessed on its 
own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service 
member under the same circumstances today would reasonably be expected to receive 
a more favorable outcome. 

6.  Published guidance to the Service BCM/NRs clearly indicates that the guidance is 
not intended to interfere or impede on the Board's statutory independence. The Board 
will determine the relative weight of the action that led to the discharge and whether it 
supports relief or not. In reaching its determination, the Board shall consider the 
applicant's petition, available records, and/or submitted documents in support of the 
petition. 

BOARD DISCUSSION:  

1.  The applicant's request for a personal appearance hearing was carefully considered.  
In this case, the evidence of record was sufficient to render a fair and equitable 
decision.  As a result, a personal appearance hearing is not necessary to serve the 
interest of equity and justice in this case.

2.  After reviewing the application and all supporting documents, the Board found the 
relief was warranted. 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 reason for his separation and whether to apply clemency. The 
Board noted the applicant’s service record shows he maintained excellent efficiency 
ratings until he reported to his unit on 25 August 1962, where separation was initiated in 
less than 60 days. The Board found sufficient evidence of in-service mitigating factors 
for the misconduct to weigh a clemency determination. The Board found that relief was 
warranted based upon guidance for consideration of discharge upgrade requests.




BOARD VOTE:  

Mbr 1	Mbr 2	Mbr 3

:X	:X	:X	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 the applicant’s 
DD Form 214 for the period ending 16 November 1962 showing his character of service 
as 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.  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 ABCMR has the discretion to hold a hearing; applicants do not have a right to 
appear personally before the Board. The Director or the ABCMR may grant formal 
hearings whenever justice requires. 

3.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) governed 
the policies and procedures for the separation of enlisted personnel. This regulation 
provided that 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. 

4.  Army Regulation 635-209, in effect at the time, set forth the policy and prescribed 
procedures for eliminating enlisted personnel for unsuitability. Action would be taken to 
discharge an individual for unsuitability only when, in the commander's opinion, it was 
clearly established that the individual was unlikely to develop sufficiently to participate in 
further military training and/or become a satisfactory Soldier or the individual's 
psychiatric or physical condition was such as to not warrant discharge for disability. 
Unsuitability included: (a) inaptitude; (b) character and behavior disorders, disorders of 
intelligence and transient personality disorders due to acute or special stress; (c) apathy 
(lack of appropriate interest), defective attitudes, and inability to expend effort 
constructively; (d) enuresis, (e) chronic alcoholism; and (f) class III homosexuality 
(evidenced homosexual tendencies, desires, or interest, but was without overt 
homosexual acts). Evaluation by a medical officer was required and, when psychiatric 
indications were involved, the medical officer must have been a psychiatrist, if one was 
available. A general or an honorable discharge was considered appropriate. 

5.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Service Discharge Review Boards and Service BCM/NRs on 25 July 2018, regarding 
equity, injustice, or clemency determinations. Clemency generally refers to relief 
specifically granted from a criminal sentence. Boards 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)	AR20220004559


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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