IN THE CASE OF: BOARD DATE: 19 May 2023 DOCKET NUMBER: AR20220011054 APPLICANT REQUESTS: His undesirable discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record) . War Department AGO Form 53-59 (Enlisted Record and Report of Separation Undesirable Discharge) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 after a late party with a group of high school graduates of his age, a friend and he entered a railroad building to rest and get out of the cold. They were then located by local police, taken into custody for trespassing, and told that if they signed relief papers they would be sent back to Fort Riley, KS. Instead, they were taken to a reform school for young men and locked up. He asked for an attorney, but was punched in the stomach and slapped in the face and told he was property of the State and had no rights. He has been a good citizen and is just looking for help with health care. He needs Department of Veterans Affairs healthcare and cannot get it without the change in status 3. The applicant's military records are not available for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center, St. Louis, MO, in 1973. It is believed his records were lost or destroyed in that fire. This case is being considered using his WD AGO Form 53-59. 4. The applicant enlisted in the Regular Army on 7 June 1949. He did not complete training and was not awarded a military occupational specialty. ABCMR Record of Proceedings (cont.) AR20220011054 5. The applicant was discharged on 5 October 1949 in the grade of E-1. His WD AGO Form 53-59 shows he was discharged under the provisions of Army Regulation 615-366 (Enlisted Personnel Discharge -Misconduct (Fraudulent Entry, Absence without Leave (AWOL), Desertion, Conviction by Civil Court) for conviction by civil court, and issued an undesirable discharge. He had 1 month and 6 days of creditable service with a reported 85 days of lost time. 6. Regulatory guidance, in effect at the time, set forth the basic authority for the separation of enlisted personnel for reasons of fraudulent entry, AWOL, desertion, or conviction by a civil court. The regulation provided that members guilty of the above misconduct were subject to separation. An undesirable discharge was considered appropriate. 7. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and 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 not warranted. The Board carefully considered the applicant’s 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 upon a preponderance of evidence, the Board determined that 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 ABCMR Record of Proceedings (cont.) AR20220011054 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 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 begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. 3. Army Regulation 615-366, in effect at the time, set forth the basic authority for the separation of enlisted personnel for reasons of fraudulent entry, AWOL, desertion, or conviction by a civil court. The regulation provided that members guilty of the above misconduct were subject to separation. This regulation also prescribed that an undesirable discharge was normally issued. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 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 ABCMR Record of Proceedings (cont.) AR20220011054 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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//