ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:    BOARD DATE: 22 February 2021 DOCKET NUMBER: AR20200001296 
APPLICANT REQUESTS: The applicant requests the upgrade of his under other than honorable conditions discharge to general under honorable conditions. 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. DD Form 293 (Application for the Army Discharge Review Board) . Two letters of support 
FACTS: 
1. 
The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 joined the Army on 10 December 1972; he completed basic combat training (BCT) at Fort Knox, KY and advanced individual training (AIT) for military occupational specialty (MOS) 12A (Pioneer/Blaster) at Fort Leonard Wood, MO. He was subsequently assigned to Fort Belvoir, VA, where he shared a room with three white males; every month, when they were paid, his roommates would get drunk and then proceed to "jump" on him. The applicant went absent without leave (AWOL) to get away from his white roommates. 

3. 
The applicant provides two letters of support, one from a former employer and the other from a childhood friend; both speak favorably of the applicant and indicate, following the applicant's discharge, he has not been in any trouble with the law. The applicant's friend mentions the applicant's health has been failing, and this is the reason for the applicant's upgrade request. 

4. 
The applicant's service records show: 


a. 
After obtaining his parents' consent, the applicant enlisted into the Regular Army for 2 years; he was 17 years old. On completion of initial training, orders assigned the applicant to Fort Belvoir, and he arrived on 1 May 1973. 

b. 
At some point prior to 8 July 1973, the applicant departed Fort Belvoir in a leave status; effective 8 July 1973, the applicant's Fort Belvoir unit reported him as AWOL and dropped him from unit rolls on 8 August 1973. 

c. 
On 18 October 1973, the applicant surrendered himself to civilian authority, and, on 19 October 1973, the civilian authority returned him to military control at Fort Benning, GA, where the applicant was assigned to the U.S. Army Personnel Control Facility (PCF). 

d. 
On 30 October 1973, the PCF preferred court-martial charges against the applicant for AWOL from 8 July until 18 October 1973. 

e. 
On 20 November 1973, after consulting with counsel, the applicant requested discharge for the good of the service and in-lieu of trial by court-martial, under chapter 10 (Discharge for the Good of the Service), AR 635-200 (Personnel Separations – Enlisted Personnel). In his request, the applicant affirmed no one had subjected him to coercion, that his counsel had advised him of the implications of his request. The applicant elected to submit the following statement in his own behalf, writing, in effect: 


(1) 
When he entered the Army at age 17, his parents were buying a house; both of his parents were working at that point. When the applicant went home for a visit, his mother told him they were about to lose the house, and his father could not keep up with the bills. As a result, the applicant went to live with his cousin Florida and work for 2 months in the cement roofing business to help support his parents. 

(2) 
His roofing job helped get the bills straightened out, but other problems then came up:  the applicant learned his mother had to have an operation; the applicant's cousin was diagnosed with cancer, and, because his cousin's wife had left him, there was no one to care for his cousin; a lady was pressing charges against the applicant's grandmother because of a car accident; and his brother was shot in the stomach and was unable to work to support his family. 

(3) 
The applicant wrote, in effect, he felt the Army was just wasting money on someone who did not want to be there; the best way for him to help his family was to be discharged because he had a job waiting for him. 

f. 
On 20 December 1973, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for 1 day of AWOL on 18 December 1973. 

g. 
On 8 January 1974, the applicant's PCF commander endorsed the applicant's separation request, stating the applicant's family problems were the main reason for the applicant's period of AWOL; the applicant had accepted NJP on 13 March 1973 for failure to obey a lawful order, and he had accrued 102 days of bad time. Prior to entry on active duty, the applicant had completed 10 years of civilian education. 

h. 
On 16 January 1974, the applicant's battalion commander recommended approval of the applicant's request, writing he had interviewed the applicant and learned the applicant had completed BCT without incident and achieved excellent conduct and efficiency ratings. Prior to graduating from AIT, the applicant received NJP for misconduct and then went AWOL for 102 days; the applicant maintained family and financial problems prohibited him from fulfilling his service commitment. The battalion commander opined, "[applicant] is a substandard, poorly motivated, low quality individual who no longer desires to fulfill his military commitment. He is of no value to the Army and possesses limited potential for future development. He is overwhelmed with personal and family problems, and is unable to cope with them while concurrently living in a military environment. He is immature and has exercised poor judgment in seeking solutions to his problems. The Army stands to gain nothing (by) retaining him on active duty in view of his anti-Army attitude." 

i. 
On 18 January 1974, the separation authority approved the applicant's separation request and directed his undesirable discharge under other than honorable conditions; in addition, the separation authority ordered the applicant's reduction to the lowest enlisted grade. On 4 February 1974, the applicant was discharged accordingly; his DD Form 214 (Report of Separation from Active Duty) shows he completed a net total of 10 months and 13 days of his 2-year enlistment contract, with 103 days of lost time. The applicant was awarded or authorized the National Defense Service Medal and a marksmanship qualification badge. 


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5. The applicant maintains he went AWOL because his three white roommates got drunk and tried to beat him up every payday. 
a. 
During the applicant's era of service, Soldiers charged with Uniform Code of Military Justice (UCMJ) violations, for which a punitive discharge was an authorized maximum punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and available in-lieu of trial by court-martial. The Manual for Courts-Martial then in effect stated a punitive discharge was one of the authorized punishments for violations of Article 86 (Absence Without Leave for more than 30 Days). 

b. 
With regard to hazing and bullying, DOD had no explicit policies or procedures for defining and/or prohibiting these behaviors when the applicant separated. 


(1) In January 2012, the Service Chiefs initiated a formal, coordinated action to create a posture of "Zero Tolerance"; in support of that initiative, Congress required, in 
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the Fiscal Year (FY) 2013 National Defense Authorization Act (NDAA), the Service Secretaries to submit an initial report to Congress detailing their efforts to address hazing. On 7 February 2012, the Defense Equal Opportunity Management Institute (DEOMI) published "Executive Summary on Hazing in the Military"; while this report included descriptions of hazing behaviors, it offered no standard definition for hazing and failed to address bullying. 
(2) On 23 December 2015, DOD issued a policy memorandum, titled "Hazing and Bullying Prevention Response in the Armed Forces"; the document direct each of the Military Departments and the National Guard Bureau to promulgate appropriate punitive regulations, and went on to offer enterprise-wide guidance on the prevention of hazing and bullying. The policy memorandum additionally included updated hazing and bullying definitions (along with examples of activities likely to be problematic) and requirements for ongoing education, tracking, and reporting. 
c. AR 635-200, Paragraph 5-3 (Secretarial Authority), stated the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. The discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. In cases where the Board changes an applicant's separation authority citation to AR 635-200, paragraph 5-3, it becomes necessary to also make corrections to the narrative reason for separation and its associated separation program designator (SPD). According to AR 635-5-1 (SPD), in effect at the time, Soldiers separated per paragraph 5-3, AR 635-200 were issued the following narrative reason for separation: "Determination of Service Secretary"; the SPD was "JFF." 
d. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 
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 (circumstances regarding the period of AWOL), his record of service, the frequency and nature of his misconduct (Article 15(s), lost time), 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. The Board considered the two letters of reference but found them insufficient to support 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.  
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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. 
X 
CHAIRPERSON 
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 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. 
AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. 


a. 
Paragraph 1-9e (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. 

b. 
Chapter 10 permitted a Soldier to request discharge for the good of the service when they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial, United States 1969 (Revised Edition), included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Once approved, an undesirable discharge was normally furnished, but the discharge authority could direct either an honorable or general discharge, if warranted. 


3. 
The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments showed a punitive discharge was an available maximum punishment for violations of Article 86 (AWOL for more than 30 days). 

4. 
AR 600-200 (Enlisted Personnel Management System), in effect at the time, stated in paragraph 7-26b (3) (Reduction Authority and Reasons – Reasons for Reduction – Approved for Discharge from Service with an Undesirable Discharge) that Soldiers approved for administrative separation with an undesirable discharge under other than honorable conditions were to be reduced to private/E-1 prior to discharge. 

5. 
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 on the basis of 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. 
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