IN THE CASE OF: Fernandez, Daniel B. BOARD DATE: 26 October 2021 DOCKET NUMBER: AR20200009920 APPLICANT REQUESTS RECONSIDERATION FOR: reconsideration of his previous request for an upgrade of his undesirable discharge to a fully honorable discharge (HD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Chronological list of events * Department of Defense (DOD) Directive No. 1332.14 * Appeals for Veterans Claims (extract) * Diagnostic criteria for 301. 7 Anti-Social personality FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR1999015452 on 2 December 1999. 2. The applicant states, in effect: a. He went AWOL twice within an 18-day period, between 1 and 18 November 1961, due to a personality clash with his commanding officer and discrimination. He was court-martialed for being absent without leave (AWOL) for seven days. He plead guilty and was sentenced to restriction for 30 days. Two days following the court- martial, he was ordered to have a psychiatric evaluation. While on restriction, the discrimination increased; however, he knew the consequences for hitting or disobeying an officer. b. He went AWOL the second time and, on his own volition, returned four days later. He was immediately placed in pretrial confinement until his discharge. He was one month short of completing his sentence when he was discharged. The Special Court Martial authority had the ability to discharge him with a bad conduct discharge, but a discharge was never requested nor considered. c. He was discharged four months later under the provisions of Army Regulation (AR) 635-208 (Personnel Separations – Discharge - Unfitness) for having an antisocial personality (diagnosed on 6 December 1961), and received an undesirable discharge. The Board’s findings were based on AR-635-208, which was superseded by the Department of Defense Directive (DODD) Number 1332.14, dated 14 January 1959, almost three years prior to his discharge. 3. The applicant provides: a. Chronological list of events that led to his discharge b. Department of Defense (DOD) Directive No. 1332.14 (5 pages), dated 14 January 1959, Subject: Administrative Discharges, states “This directive revises the standards and procedures governing the administrative discharge of enlisted persons from the Armed Forces. The referenced memoranda and any other existing regulations in conflict with the provisions of this Directive are superseded and cancelled ninety days after date of issue of this Directive. c. Appeals for Veterans claims court documents (extract) (5 pages), areas of emphasis have been highlighted by the applicant. d. Diagnostic criteria for 301.7 Anti-Social personality provides an in-depth summary of the various personality disorders, namely the anti-social personality disorder. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 18 June 1956 as a prior service member. b. His separation details are listed in his previous ABCMR case, AR1999015452. c. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 23 March 1962, under the provisions of AR 635-208, separation program number (SPN) 28B, with a character of service of under other than honorable conditions. He served 8 months and 12 days net service this period and 4 years and 7 months in other service. 5. By regulation AR 635-208, action will be taken to separate an individual for unfitness when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort is unlikely to succeed. 6. 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 applicants request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board noted the absence of the applicant's separation packet. His DD Form 214 shows he was separated in March 1962, under AR 635-208, for unfitness with an under other than honorable conditions discharge. He served 8 months and 12 days of active service. The applicant provided insufficient evidence of post- service achievements in support of a clemency determination. Based on 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 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, United States 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-208 (Personnel Separations – Discharge – Unfitness), in effect at the time, establish policy and provide procedures and guidance for the prompt elimination of enlisted personnel who are determined to be unfit for further military service. Paragraph 3 states, Individuals will be discharged by reason of unfitness with an undesirable discharge when it has been determined that an individual's military record is characterized by one or more of the following: * Frequent incidents of a discreditable nature with civil or military authorities · * Sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with, or assault upon, a child, and other indecent acts or offenses * Drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana * An established pattern for shirking * An established pattern showing dishonorable failure to pay just debts 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) 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 type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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 based on equity, injustice, or clemency grounds, 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. 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) AR20200009920 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1