BOARD DATE: 10 September 2020 DOCKET NUMBER: AR20200000445 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20180014804 on 22 April 2019. In effect, he requests his undesirable discharge be upgraded. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * his request for reconsideration * nine pages of a copy of an Executive Grant of Clemency FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20180014804 on 22 April 2019. 2. Title 10, U.S. Code (USC), Section 1552 a(3)(D) provides that any request for reconsideration of a determination of a Board under this section, no matter when filed, shall be reconsidered by a Board under this section if supported by materials not previously presented to or considered by the Board in making such determination. 3. Army Regulation 15-185 (ABCMR) currently states a request for reconsideration will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The Executive Grant of Clemency was not previously contained in the considered record. 4. The applicant states he is disappointed in the prior decision; however, this is his first time trying to resolve this issue. At no time during his direct conversations with the President Ford Clemency Board Chairman was he told that he was responsible to request his records be updated though the Department of the Army Board of Corrections. He performed his alternate service in good faith and expects his service record will reflect this. 5. The applicant enlisted in the Regular Army on 14 October 1969, with parental consent at 17 years of age. 6. The applicant's available record contains limited documentation related to his period of service. 7. The applicant received nonjudicial punishment (NJP) on 24 August 1971, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 2 July 1971 until on or about 12 August 1971. 8. Before a summary court-martial on or about 22 December 1971, at Fort Ord, California, the applicant was found guilty, in accordance with his plea, of being AWOL from on or about 21 September 1971 until on or about 30 November 1971. 9. The applicant's record also shows he was AWOL from on or about 21 October 1971 until on or about 29 November 1971 and from on or about 27 January 1972 until on or about 25 October 1972. 10. The available record does not include any of the applicant's separation processing documentation. 11. Special Orders Number 189, issued by Headquarters, 9th Infantry Division, Fort Lewis, Washington on 30 November 1972, ordered the applicant's discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service and the issuance of a DD Form 258A (Undesirable Discharge Certificate). 12. The applicant was discharged on 30 November 1972, under the provisions of Army Regulation 635-200, with the separation program number "246" (for the good of the service). The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows his service was characterized as under other than honorable conditions and confirms he was issued an Undesirable Discharge Certificate. 13. The ABCMR denied the applicant's request for an upgrade on 22 April 2019. 14. The applicant provides a copies of documentation from the Gerald R. Ford Presidential Library and Museum, dated 13 September 2019, which shows that on 21 August 1975, he was recommended for a grant of a conditional pardon by the Presidential Clemency Board. A copy of the actual pardon and clemency discharge certificate issued to the applicant are not included. 15. Issuance of a Presidential pardon and clemency discharge returns civil rights to the recipient but does not affect the underlying discharge and does not entitle the individual to any benefits administered by the Department of Defense or the Department of Veterans Affairs. BOARD DISCUSSION: 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 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. The Board found that the applicant being recommended for a grant of a conditional pardon by the Presidential Clemency Board is insufficient evidence to support a recommendation for relief in this case. 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20180014804, dated 22 April 2019. 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. 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 regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. It provides: 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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 3. Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a to certain former Soldiers who voluntarily entered into and completed an alternate restitution program specifically designed for former Soldiers who had received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973. Upon successful completion of the alternate service, former members would be granted a clemency discharge by the President of the United States, thus restoring his or her affected civil rights. The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the Veterans Administration. Soldiers who were AWOL entered the program by returning to military control and accepting a discharge in lieu of trial by court-martial. It identified three categories of persons and permitted them to apply for clemency discharge. Those categories were: a. civilian fugitives who were draft evaders; b. members of the military who were still AWOL; or c. former military members who had been discharged for desertion, AWOL, or missing movement. d. Those individuals who were AWOL were afforded the opportunity to return to military control and accept an undesirable discharge or stand trial. Those who elected to earn a clemency discharge (AWOL’s and discharged members) could be required to perform up to 24-months of alternate service. Upon successful completion a clemency discharge would be issued. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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) AR20200000445 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200000445 5 ABCMR Record of Proceedings (cont) AR20200000445 4