IN THE CASE OF: BOARD DATE: 10 September 2020 DOCKET NUMBER: AR20200002229 APPLICANT REQUESTS: The applicant requests correction of his record to show his characterization of service as under honorable conditions (general) or honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 provides a self-authored letter and states he was assigned to Germany at the time he went absent without leave (AWOL) and his discharge was unjust because he was having problems back home. His mother shot two men and was awaiting trial. He spoke to his first sergeant about getting reassigned back to the United States and was told there was no way he could do that; however, he could take 14 days of leave, go AWOL for 30 days and turn himself in and they would reassign. a. He took 14 days of approved leave and attempted to get assistance through his Congressman with no success so he went AWOL for 30 days and turned himself in. He spoke to everyone he could think of but nobody could help him. b. When he got caught he was taken to Fort Campbell, KY; he had to sign a lot of papers and he did not know what he was signing and he was not given enough time to read and/or fully understand them. He requests the board at least upgrade his characterization of service to under honorable conditions (general). 3. On 3 August 1973, at the age of 18 years old with 2 years of high school education, the applicant enlisted for a period of 6 years. His record shows: a. Upon completion of training he reported to his first unit of assignment at Fort Campbell, KY where he accepted non-judicial punishment (NJP) on two occasions for failure to report to his prescribed place of duty and failure to obey a direct order and change from his civilian clothes into uniform. Despite his NJP, prior to him departing Fort Campbell, KY for permanent change of station he received an enlisted efficiency report that indicates he was an above average soldier with the ability to adapt and take responsibility. b. On 27 January 1975, reported to his second unit of assignment in Germany. On 15 June 1975 his unit reported a change in duty status from Present for Duty to AWOL. On 14 July 1075, his duty status changed from AWOL to Dropped from Unit Rolls (DFR). The commander indicated on the Notice of Unauthorized Absence from the United States Army (DA Form 3835), "Enlisted member [EM] is continental united states (CONUS) to get married." (1) A Notice of Return of U.S. Army Member from Unauthorized Absence (DA Form (3836) dated 17 May 1976, shows the applicant was returned on 11 May 1976. A Federal Bureau of Investigation report shows he was arrested on 11 May 1976 for public drunkenness in Knoxville, TN. A request for Absentee records shows on 13 May 1976, the US Army Enlisted Records Command, Fort Benjamin Harrison, IN forwarded the following records to the USA Personnel Control Facility, Fort Campbell, KY. * Military Personnel Records Jacket * DA Form 3835 * Health Record(s) * Extract of Morning Reports (DA Form 4187/DA Form 188) (2) His record is void of a complete separation packet, however, on 19 May 1976, he underwent a medical examination for the purpose of Chapter 10 [separation] and was found qualified for separation. On 26 May 1976, the applicant signed a Statement of Medical Examination indication there had been no changed in his medical condition. (3) On 16 June 1976 he was reduced to private/E1 with a retroactive effective date of 1 June 1976. On 12 July he was transferred to the US. Army Transfer Point, Fort Campbell, KY for separation processing under the provisions of Army Regulation 635-200, Chapter 10, and was to receive a DD Form 258A (undesirable) discharge certificate. (4) On 14 July 1976, he was discharged accordingly. His DD Form 214 (Report of Separation from Active Duty) shows he completed 2 years and 14 days of his 6 year contractual obligation with 5 months and 18 days of Foreign Service in Germany. He had 330 days of lost time, 49 days of excess leave, and was awarded or authorized the National Defense Service Medal and Marksmanship Badge (M-16). 4. The applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, which would have required him to have consulted with legal counsel and been advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge. An under other than honorable conditions is authorized and normally considered appropriate; however, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 5. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. 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 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, 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 Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely 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 (Active Duty Enlisted Administrative Separations), as in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states: a. A Chapter 10 (Discharge in Lieu of Trail by Court Martial) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable 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. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. c. 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. 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) AR20200002229 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200002229 5 ABCMR Record of Proceedings (cont) AR20200002229 4