IN THE CASE OF: BOARD DATE: 18 September 2020 DOCKET NUMBER: AR20200001990 APPLICANT REQUESTS: The applicant requests reconsideration of his request to upgrade his undesirable discharge to an honorable discharge. Additionally, he requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 AR20040003900 on 23 February 2005. 2. The applicant states he served a long time before he messed up, and since he has been out, he has not been in any trouble of any kind. If he could go back in the service, he would, but he is too old and feeble. The Board would probably tell me no, but asks the Board to reconsider upgrading his discharge. 3. On 7 April 1966, the applicant was inducted into the Army of the United States at the age 19 years old. 4. In 24 August 1966, 140 days after induction, the applicant went absent without leave (AWOL) and remained absent until 6 January 1967 (AWOL – 135 days). On 3 February 1967, he was convicted by a special court-martial for the offense. He was sentenced to confinement at hard labor for 6 months and forfeiture of $60.00 pay for 6 months. On 13 February 1967, the sentence was approved. On 17 May 1967, the portion of his sentence to confinement was suspended for 6 months. 5. On 14 June 1967, the applicant went AWOL and on 13 July 1967, he was dropped from the rolls. On 2 March 1976, he was apprehended by civil authorities and returned to military control (AWOL – 3184 days). On 9 March 1976, he was confined by military authorities for pre-trial confinement. 6. In a statement, dated 15 March 1976, the applicant confirmed he was advised by his defense counsel that at the time the government did not have the necessary documentation to obtain a conviction at a court-martial proceeding and due to the lack of documentation it was unlikely that a court-martial would be held at all. Nevertheless, he knowingly and voluntarily declared he was AWOL from 14 June 1967 to 2 March 1976. 7. On 17 March 1976, in connection with his separation proceeding the applicant underwent a medical examination and the following documents were completed: a. An SF 93 shows the applicant indicated he was in good health. He had, at the time, a history of swollen or painful joints. b. An SF 88 shows the physician found the areas examined during the applicant?s clinical evaluation was normal, with the exception of his feet due to swelling, pain, and stiffness at the left ankle. The physician medically cleared him for separation. c. His record is void of a mental status evaluation. 8. On 19 March 1976, court-martial charges were preferred against the applicant for Article 86, Uniform Code of Military Justice (absence without leave) for one specification of AWOL from 14 June 1967 until 2 March 1976. 9. The applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights, and the basis for voluntarily requesting discharge under the provision of AR 635-200, chapter 10. The applicant elected to submit a statement on his own behalf. He stated he was drafted in the Army at the age of 19 years old. The one thing he did not like about the Army was being away from his family and away from home. His father was in bad health. He did not want to be in the Army or have any part of it. If his discharge was not approved, he would go AWOL again. a. His unit commander endorsed his request to be discharged with an undesirable discharge certificate. He stated the administrative burdens involved in courts-martial and possible confinement were not considered warranted in view of the nature of the offense. Based on his previous record, punishment could be expected to have minimal rehabilitative effect. b. The applicant's chain of command recommended approval of his request and on 25 March 1976, the appropriate separation authority approved the applicant's request directing that he be issued an undesirable discharge certificate. c. On 5 April 1976, he was discharged accordingly. His service was characterized as under other than honorable conditions with an Undesirable Discharge Certificate. He completed 7 months and 13 days net active service this period with 3424 lost days (AWOL – 3321 days; confinement – 103 days). His DD Form 214 (Report of Separation from Active Duty) shows he was awarded or authorized an M14 Rifle Sharpshooter Marksmanship Qualification Badge and the National Defense Service Medal. 10. On 23 February 2005, the ABCMR denied the applicant?s petition for an upgrade of his undesirable discharge to an honorable. In his DD Form 149, he stated due to his family health problems and financial needs of his aging parents, he was unable to serve the required time. He needed to be home with his parents and six siblings. At the time of his petition, both parents were deceased and he was unable to obtain their medical records. The ABCMR determined he did not show error, injustice, or inequity for the requested relief. He did not present any evidence to support his contentions nor did the evidence in the record support them. 11. Army Regulation 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 12. Army Regulation 635-200, Chapter 10, provided for a voluntary discharge request in lieu of trial by court martial. Soldiers could request separation when charges had been preferred against them for which under the Uniform Code of Military Justice (UCMJ) and Manual for Courts-Martial (MCM) 1969 (Revised Edition) they could be sentenced to a bad conduct or dishonorable discharge. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. d. According to the MCM, 1969 (Revised Edition), Article 86, UCMJ –– absence without leave for more than 30 days, included a punitive discharge. 12. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency 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 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 :XXX :XXX :XXX 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 AR20040003900, dated 23 February 2005. 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 (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member?s current enlistment of current period of service with due consideration for the member?s, age, length of service, grade, and general aptitude. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. d. A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM) 1969 (Revised Edition) included a bad conduct or dishonorable discharge (punitive discharge) could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. e. A medical examination under the provisions of chapter 10 was required; however, a mental status evaluation was not required. A copy of the medical examination was to be included in the separation proceedings packet. 3. Per Manual for Courts-Martial, 1969 (Revised Edition), Article 86, UCMJ –– absence without leave for more than 30 days, included a punitive discharge. 4. 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. 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, 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. 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) AR20200001990 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200001990 6 ABCMR Record of Proceedings (cont) AR20200001990 5