IN THE CASE OF: BOARD DATE: 10 August 2023 DOCKET NUMBER: AR20230005262 APPLICANT REQUESTS: his undesirable discharge (UD) be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 he was young back then and doing stupid things. If he hadn't been going through a rough time back [family problems] then he would have stayed in for 20 years. He is now 81 years old and doesn't want the black mark on his conscience when he dies. 3. The applicant enlisted in the Regular Army for 3 years on 25 November 1958 and completed training with award of the military specialty code of 500.00 (Supply Handler). He was honorably discharged on 29 January 1961 with the issuance of a DD Form 214 at that time. The applicant had an immediate reenlistment, for 6 years, on 30 January 1961 and the highest grade he held was E-4. 4. On 19 August 1962, the applicant's immediate commander noted that he had given the applicant an unsatisfactory conduct rating for consistent and flagrant patterns of absences without leave (AWOL) which had made him repeatedly vulnerable to punitive action. Between the period 1 May 1962 and 10 August 1962, the applicant was guilty of AWOL on four occasions. The commander indicated the applicant was hostile to any appeals to his pride or sense of responsibility concerning his future. The applicant insisted that he did not care and that he wanted out of the service. 5. On 27 August 1962, the applicant's immediate commander recommended he be eliminated under Army Regulation 635-208 (Personnel Separations ? Discharge - Unfitness), paragraph 3a or 3d or under Army Regulation 635-209 (Personnel Separations ? Discharge - Unsuitability -Character or Behavioral Disorders), paragraph 3c. The specific reasons for the separation recommendation were stated as: * he had some personal problems affecting his attitude and behavior * he was heavily in debt * he planned to get married that week * while these circumstances might offer some mitigation; they are self-imposed stresses and his response to them was childish * he had failed to make any reasonable attempt to reconcile his personal affairs and his military obligations * he failed even to inquire if he would be authorized to ration separately after marriage, or to request a pass so that he could get married on the scheduled date 6. The applicant underwent a psychiatric evaluation on 18 September 1962. He was found to be free of mental defect, disease, or derangement. He was able to distinguish right from wrong and to adhere to the right and was capable to cooperated in his own behalf. He was afforded a diagnosis of a passive aggressive reaction, chronic, severe, manifested by obstructionism, negativism, and disrespect for authority. 7. A Record of Court-Martial Conviction shows the applicant was found guilty of breaking restriction by Summary Court-Martial Number 9, adjudged and approved on 19 September 1962. His sentence was confinement for 1 month. 8. On 5 February 1963, the applicant's immediate commander formally recommended his separation from service under the provisions of Army Regulation 635-208. Included in the commander's recommendation were the following: a. A Reason for Action Recommended statement wherein the commander stated: (1) The applicant had performed in an excellent manner from January 1960 to January 1962. As a result, he was promoted to E-4 on 4 January 1962. (2) Sometime during the period 4 January to 1 May 1962, he indicated a strong desire to get out of the service, by Board Action if necessary. Four violations of Article 86 occurred between 1 May and 10 August 1962. The applicant when counselled indicated that this was his plan; to do all that was required to obtain a discharge. (3) During his confinement the applicant was counselled by the battery commander and the Battalion Chaplain and gave evidence that he was changing his attitude and would like to remain in the service. After his release, from the stockade, he conducted himself in a Soldierly manner and was promoted to E-3 on 12 November 1962. This good behavior continued until 12 December 1962 when he was late for duty. Only administrative action was taken at this time because of extenuating circumstances. b. An Attempt to Develop the Individual statement documents multiple nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice as on 1 May 1962, for being AWOL, 31 May 1962 for AWOL, 2 July 1962 for AWOL, 10 August 1962, 13 September for AWOL, and on 19 September 1962 he received a Summary Court-Martial for breaking restriction. c. A Unit Punishment Record lists six occurrences of offenses and the imposed punishments between 1 May 1962 and 23 January 1963 included reduction from E-4 to E-3 on 6 July 1962, and from E-3 to E-2 on 10 August 1962. d. A statement from the First Sergeant describing his interactions with the applicant and the counseling he gave the applicant. 9. The applicant acknowledged the proposed separation and waived his administrative rights on 5 February 1963. 10. The separation authority approved the discharge recommendation on 18 February 1963, waived the requirement for a board of officers hearing, directed the applicant be reduced to the lowest enlisted grade, and issued an Undesirable Discharge under Army Regulation 635-208, paragraphs 15 and 18. 11. The applicant was discharged on 26 February 1963, in the pay grade of E-1. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635- 208 (Personnel Separations ? Discharge - Unfitness), with a separation program designator of 28B (Unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities. His service characterization was under other than honorable conditions. He was credited with 2 years and 3 days of net active service this period with 2 years, 2 months, and 3 days of prior active service. He is shown to have had 28 days of lost time. His awards included the Army Good Conduct Medal. 12. In reaching its determination, the Board can consider the applicant s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. ? BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense 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 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, 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 :xx :xx :xx 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, 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 635-208 (Personnel Separations ? Discharge - Unfitness), 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. 3. 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to DRBs and BCM/NR on 25 July 2018, 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.) AR20230005262 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1