IN THE CASE OF:  

BOARD DATE:  3 May 2021

DOCKET NUMBER:  AR20200009107


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552), dated 30 January 2020
*	DD Form 4 (Enlistment Record – Armed Forces of the United States), dated 
12 March 1959
*	DD Form 214 (Armed Forces of the United States Report of Transfer or 
Discharge), for the period ending 21 December 1962
*	DA Form 20 (Enlisted Qualification Record)

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 file in a timely manner.

2.  The applicant states he joined the Army in March of 1959. During basic training, he 
was told the Army could not honor his enlistment agreement and he would be 
discharged. Months after basic training, he waited and waited, but received no 
discharge. He kept going absent without leave (AWOL) to get something done, but they 
just sent him to Korea. He came back from Korea and the same thing continued. He is 
77 years old with lung cancer and would like to have this reconciled.

3.  The applicant enlisted in the Regular Army on 12 March 1959.

4.  A DA Form 1049 (Personnel Action), dated 23 April 1959, shows the applicant was 
notified that his enlistment commitment could not be fulfilled. He elected to be separated 
under the provisions of Army Regulation 635-205 (Early Separation) for the 
convenience of the government.

5.  By direction of The Adjutant General on 12 August 1959, the applicant was ordered 
to be retained in service.

6.  The applicant’s DA Form 20 shows he was reported AWOL, from on or about 3 April 
1960 to on or about 15 May 1960.  

7.  The applicant served in Korea from on or about 8 June 1960 through on or about  
22 June 1961.

8.  Before a special court-martial on 18 January 1962, at Fort Knox, Kentucky, the 
applicant was found guilty of being AWOL, from on or about 2 September 1961 through 
on or about 3 January 1962. The court sentenced him to reduction to the rank/grade of 
private/E-1, confinement at hard labor for six months, and forfeiture of pay for six 
months.  

9.  A DA Form 26 (Record of Court-Martial Conviction) shows the applicant was 
convicted before a special court-martial on 6 November 1962, at Fort Knox, Kentucky, 
of being AWOL from on or about 4 June 1962 through on or about 15 October 1962.  
The court sentenced him to reduction to the rank/grade of private/E-1, confinement at 
hard labor for six months, and forfeiture of pay for six months.

10.  The applicant’s record is void of a separation packet containing the specific facts 
and circumstances surrounding his discharge processing. However, a memorandum for 
elimination from service, dated 13 December 1962, indicates he was approved for 
discharge no later than 21 December 1962.

11.  The applicant was discharged on 21 December 1962, under the provisions of Army 
Regulation 635-208 (Personnel Separations – Discharge – Undesirable Habits and 
Traits of Character), with Separation Program Number "28B" by reason of unfitness.  
His service was characterized as UOTHC.

12.  The Army Discharge Review Board (ADRB) considered the applicant's request for a 
discharge upgrade on 12 April 1963. After careful consideration, the ADRB determined 
he was properly and equitably discharged and denied his petition for relief.

13.  The Board should consider the applicant's statement in accordance with the 
published equity, injustice, or clemency determination guidance.



BOARD DISCUSSION:

1.  The Board carefully considered the applicant's request, supporting documents, 
evidence in the records, and published DoD guidance for liberal consideration and 
clemency for consideration of discharge upgrade requests. 

2.  Based on the documentation available for review to include a DA Form 1049 
(Personnel Action), dated 23 April 1959, the applicant was notified that his enlistment 
commitment could not be fulfilled. The applicant was afforded several options regarding 
his enlistment, he elected to be separated and signed the corresponding personnel 
action. Additional documentation indicates that further approvals occurred followed by 
an order that he would be retained. Given the time of the applicant’s service in addition 
to evidence of administrative irregularity, the Board found relief was warranted.   


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:XXX	:XXX	:XXX	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 him a DD Form 
214 for the period ending 21 December 1962, showing his character of service as under 
honorable conditions (general).
 

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.
ADMINISTRATIVE NOTE(S):

Not Applicable

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 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 – Enlisted Personnel), in effect at 
the time, governed the basic authority for the separation of enlisted personnel. It 
provided that:

	a.  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 a Soldier whose military record is satisfactory, but not 
sufficiently meritorious to warrant an honorable discharge.

3.  Army Regulation 635-208, in effect at the time, set forth the policy for administrative 
separation for unfitness. Paragraph 3 provided that individuals would be discharged by 
reason of unfitness when their records were characterized by one or more of the 
following: (a) frequent incidents of a discreditable nature with civil or military authorities, 
(b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or 
(e) an established pattern showing dishonorable failure to pay just debts. This regulation 
prescribed that an undesirable discharge was normally issued unless the particular 
circumstances warranted a general or honorable discharge.

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)	 AR20200009107


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS
	

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