IN THE CASE OF: BOARD DATE: 15 December 2022 DOCKET NUMBER: AR20220005473 APPLICANT REQUESTS: His discharge under other than honorable conditions (UOTHC) be upgraded to either a discharge under honorable conditions (general) or an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel Brief, University of Illinois at Chicago School of Law Veterans Legal Clinic * DD Form 4 (Enlistment Record – Armed Forces of the United States) * DA Form 20 (Enlisted Qualification Record) * DA Form 24 (Service Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Under Secretary of Defense, Washington, D.C., Memorandum, Subject: Guidance to military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations * State of Illinois Prisoner Review Board En Banc Minute Sheet (69 pages) FACTS: 1. The applicant did not file within the three-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 defers to counsel. On behalf of the applicant, counsel provides a 10- page brief which is available in its entirety for the Board's consideration. Counsel states, in part: a. The applicant had a troubled life and was looking for work and direction when he joined the Army at the age of 17. b. The applicant had an incident of going absent without leave (AWOL) for a period of three days and was sentenced to 57 days of confinement for this infraction. Following his release from confinement, he was given the choice of transferring to another unit or discharge from the Army UOTHC. He chose the latter and was discharged on 2 February 1962. He was essentially punished twice for the same crime. As a result of this discharge status, he had never received another dime nor assistance from the military. c. Shortly after his discharge, the applicant made a grave decision to rob a man. During that robbery, he shot and killed both the man and his wife. Immediately, upon the police bringing him in for questioning, the applicant confessed to the murders and pleaded guilty. He was convicted of one count of murder and sentenced to 90-150 years in prison. He has been a resident of the Illinois Department of Corrections since 1963. d. Had the applicant not been discharged, he would not have been in a position to commit these crimes. e. The applicant has had an exemplary disciplinary record with only minor, nonviolent infractions while in prison. He also completed his high school equivalency diploma, earned credit for college-level courses, became skilled in trades, and taught other inmates trade skills. f. The Board should consider the applicant's case under several points of the "Wilkie Memorandum." Wilkie's mission was to instill guidelines that consider giving those who served second chances in light of rehabilitation. The principles were meant to consider the candidate, the infraction itself, as well as the punishment that was handed down. The applicant is entitled to relief under equity grounds because his punishment was excessive and he has paid the price for that punishment for several decades. (1) The Wilkie Memorandum dictated that Veterans should only be punished to the extent necessary that they should be rehabilitated, and that they should be granted second chances for paying for their misdeeds. The applicant served nearly two months for his AWOL infraction. He accepted his discharge out of a lack of respect for authority. In the time since his discharge, he has come to respect authority. (2) The memorandum also states that honorable discharges do not require flawless military service. The applicant had outstanding marks for his training prior to being stationed in France. His lone marks on his service record are for his few days of AWOL and the two months he spent in confinement. (3) The Board should consider the relative severity of the misconduct and the nature of the misconduct in terms of violence. The applicant did commit a violent act outside of his military service, for which he is serving his time. The crime at issue was a nonviolent crime and he accepts responsibility for his actions. However, the second punishment he received, a less that favorable discharge, should be considered excessive for the minor disciplinary violations committed during service nearly 60 years ago. (4) The Board should look at the overall character of the applicant. This is an important factor because it considers all aspects of his life. He joined the Army at a young age and, shortly after he left, he committed murder. This is a massive stain on his record that has defined his life and he is trying to overcome that. (5) The Wilkie Memorandum asks the Board to look at positive or negative post- conviction conduct including arrests, charges and convictions. The applicant committed murder in 1962. While the murder conviction cannot be ignored, he expressed remorse over his actions since then. He accepted responsibility almost immediately and has served nearly 60 years in prison for those crimes. Those are crimes outside of his military service, but he is paying for them, for possibly the rest of his life. (6) The applicant does not believe he is the same man who committed his crime at age 19, let alone the man who was kicked out of the military prior to that. His record should be considered under the mandate of forgiveness granted under Wilkie's characterization of youthful indiscretion. (7) Finally, the Board is required to consider the necessity of the relief granted. An honorable, or alternatively, general discharge would entitle the applicant to much- needed medical benefits and pension. He is nearly 80 years old and has several medical issues related to heart, lungs, kidneys, blood pressure, and physical mobility. He is putting together a plan to reenter society and an upgraded discharge would allow him to shed the added stigma that comes with a low-level discharge. He deserves reconsideration based on the progress he has made over the last sixty years, rehabilitation, and equity. 3. With the consent of his parents, the applicant enlisted in the Regular Army on 3 October 1960 at the age of 17 years old. He attended Initial Entry Training (IET) at Fort Leonard Wood, MO. He was promoted to the rank/grade of private (PVT)/E-2 on 5 February 1961. 4. A DD Form 493 (Extract of Military Records of Previous Convictions) shows while attending IET, the applicant appeared before a special court-martial on or about 6 March 1961 at Fort Leonard Wood, MO, the applicant was found guilty of departing his unit in an AWOL status from on or about 11 February 1961 and remaining so absent until on or about 14 February 1961. The court sentenced him to reduction to private (PVT)/E-1; perform hard labor without confinement for 1 month; and forfeiture of $50.00 pay per month for 1 month. 5. Upon completion of IET, the applicant was assigned to a unit in Verdun, France. 6. A DD Form 789 (Unit Punishment Record) shows the applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 31 August 1961, for failing to report for duty on 29 August 1961. His punishment consisted of 2 hours of extra duty for a period of 14 days. 7. The DD Form 493 shows: a. Before a summary court-martial on or about 13 September 1961, at Verdun, France, the applicant was found guilty of failing to obey a lawful order from a commissioned officer, on or about 3 September 1961. The court sentenced him to forfeiture of $50.00 pay for one month and restriction for 30 days. b. Before another summary court-martial on or about 19 October 1961, at Verdun, France, the applicant was found guilty of breaking restriction, on or about 1 October 1961. The court sentenced him to forfeiture of $55.00 pay for one month and hard labor without confinement for 30 days. 8. The applicant underwent a psychiatric examination on 26 October 1961. The examining official noted: * Throughout his teens, he did pretty much as he chose * He left school in the ninth grade, having been held back for two years, with the principal's recommendation that he finish high school in the military * He was on probation at the same time for burglary * He enlisted in the Army primarily to get off probation * While attending IET he went AWOL to see his girlfriend * Since his arrival overseas, he had been in a fair amount of trouble and wanted to get out of the military because he did not like being told what to do * He demonstrated little insight into the factors leading to his misconduct other than his resentment toward the Army and authority figures in general * There was no evidence of psychotic process or disorder * There was no evidence of significant psychiatric disorder * He appeared to be immature with little sense of responsibility and poor control over his impulses * His service potential was poor * There were no psychiatric contradictions to separation from the service under administrative provisions 9. Special Court-Martial Order Number 62 issued by United States Garrison, Verdun, France, on 21 November 1961, shows the applicant pled guilty and was found guilty of failing to obey a lawful order issued by a senior noncommissioned officer on or about 26 October 1961. The court sentenced him to be confined at hard labor for 3 months; forfeiture of $50.00 pay per month for 3 months; and to remain reduced to PVT/E-1. 10. The applicant's immediate commander recommended the applicant's separation from service on 14 November 1961, under the provisions of Army Regulation 635-208, for unfitness. The commander noted the applicant had one court-martial for AWOL when he arrived at his current unit. Since joining the unit, he had been court-martialed twice, once for disobeying a lawful order and once for breaking restriction. He had displayed an indifferent attitude towards his duties and towards his superiors. He detracted considerably from the efficiency and morale of the company. In addition to having him attend all character guidance hours as scheduled in the unit program, the commander had personally counseled the applicant several times in an effort to determine the cause of his misbehavior and to motivate him to be a good Soldier. The First Sergeant had also talked to him at least twice per week for the past two months. In these conferences, the applicant expressed his dislike of receiving orders and carrying them out. He stated several times that all he desired was to be released from the Army. The commander noted the applicant's conduct and efficiency ratings were "unsatisfactory" and opined that further attempts at rehabilitation were unlikely to succeed. 11. The applicant acknowledged receipt of the commander's intent on 8 December 1961. He indicated he had been counseled and advised of the basis for the action to be taken against him under the provisions of Army Regulation 635-208. He was afforded the opportunity of requesting counsel and declined the opportunity. He requested that his case not be heard by a board of officers and waived his right to a hearing of his case by a board of officers. He also elected not to submit a statement in his own behalf. 12. The intermediate commander recommended approval of the separation action on 14 December 1961. 13. The separation authority approved the recommended separation on 18 December 1961, under the provisions of Army Regulation 635-208, and directed the issuance of an Undesirable Discharge Certificate. 14. Special Orders and the applicant's DD Form 214 show the applicant was discharged on 2 February 1962, under the provisions of Army Regulation 635-208, with Separation Program Number "28B" by reason of unfitness. His service was characterized as under other than honorable conditions. He was credited with completion of 1 year, 1 month, and 29 days of net service this period. He was also credited with 60 days of time lost due to AWOL from 11 February 1961 until 13 February 1961 and confinement from 12 November 1961 until 16 January 1962. 15. In addition to the previously discussed evidence, counsel provides the following documentary evidence in support of the applicant's petition. Each of these documents are available in their entirety for the Board's consideration. a. Under Secretary of Defense, Washington, D.C., Memorandum, Subject: Guidance to military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations, dated 25 July 2018. A synopsis of this memorandum is provided in paragraph 4 of the References portion of this Record of Proceedings. b. A 69-page State of Illinois Prisoner Review Board (PRB) En Banc Minute Sheet (69 pages) and associated documents which reflect a session of the Illinois PRB that was held on 27 July 2021 to deliberate parole eligibility for six convicts, including the applicant. The first 40 pages pertain to the applicant; the remaining 29 pages pertain to the other individuals. The applicant's counsel discusses the fact that they have petitioned this Board in hopes of having his discharge upgraded, which will, in turn, make him eligible for Veterans benefits that would better enable him to transition back into society. 16. 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. 17. Published guidance to the 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 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 counsel’s statement, the applicant’s record of service, the frequency and nature of the applicant’s misconduct, the reason for the applicant’s separation and whether to apply clemency. 2. A majority of the Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, a majority of the Board determined the character of service the applicant received upon separation was not in error or unjust. 3. The member in the minority noted the applicant’s pattern of non-violent misconduct during his military service, as well as what appears to have been a less than ideal upbringing prior to enlisting in the Army, and found this evidence supports clemency. The member in the minority determined the applicant’s character of service should be changed to under honorable conditions (general). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :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, USC, Section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations – General Provisions for Discharge and Release), in effect at the time, governed the policies and procedures for the separation of enlisted personnel. This regulation provided: a. An honorable discharge is a separation from the Army with honor. The issuance of an honorable discharge was conditioned upon propre military behavior and proficient and industrious performance of duty, giving due regard to the rank or grade held and the capabilities of the individual concerned. An honorable discharge would be furnished when the individual met the following qualifications: (1) Had conduct ratings of at least "Good." (2) Had efficiency ratings of at least "Fair." (3) Had not been convicted by a general court-martial (4) Had not be convicted more than once by a special court-martial. b. A general discharge was a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge. A general discharge could be issued if an individual had been convicted of an offense by general court-martial or had been convicted by more than one special court-martial in the current enlistment period or obligated service or any extensions thereof. The decision was discretionary and if there was evidence that the individual's military behavior had been proper over a reasonable period of time subsequent to the conviction(s), they may be considered for an honorable discharge. c. An undesirable discharge was an administrative separation from the service under conditions other than honorable. It was issued for unfitness, misconduct, or for security reasons. It would not be issued in lieu of trial by court-martial except upon the determination by an officer exercising general court-martial authority. 3. Army Regulation 635-208, in effect at the time, set forth the policy and prescribed procedures for prompt elimination of enlisted personnel who were determined to be unfit for further military service. Action would be taken to discharge an individual for unfitness only when, in the commander's opinion, it was clearly established that despite reasonable attempts to rehabilitate or develop the individual as a satisfactory Soldier, further effort was unlikely to succeed, or, rehabilitation was impracticable, as in cases of confirmed drug addiction, or when the medical and/or a personal history record indicated that the individual was no amenable to rehabilitation measures, and disposition under other regulations was inappropriate. Individuals would be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a give case warranted a general or honorable discharge, when it was determined that an individual's military record was characterized by one or more of the following: a. Frequent incidents of a discreditable nature with civil or military authorities. b. Sexual perversion including, but no limited to: (1) Lewd and lascivious acts. (2) Indecent exposure. (3) Indecent acts with, or assault upon, a child. (4) Other indecent acts or offenses. c. Drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana. d. An established pattern for shirking. e. An established pattern showing dishonorable failure to pay just debts. 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, 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// ABCMR Record of Proceedings (cont) AR20220005473 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1