IN THE CASE OF: BOARD DATE: 16 June 2021 DOCKET NUMBER: AR20210007833 APPLICANT REQUESTS: The applicant requests the upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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, at the time of his discharge, he was going through a very emotional period. His wife was pregnant, and she had had multiple complications, which required hospitalization; all this caused him not to think straight. A military lawyer told him, if the applicant went absent without leave (AWOL) a couple of times, they would discharge the applicant; the applicant listened to that advice and went AWOL. However, once he realized they were not coming for him, and his reason for going AWOL was not working, the applicant decided to turn himself in. The applicant contends his leadership failed grant him any leave to go home and care for his wife; however, a "deal was made that it benefited the service to let (him) go." The applicant contends he deserves an honorable character of service after what happened, and he maintains he simply wanted to take care of his pregnant wife. The applicant states that going AWOL seemed like his only choice. The applicant additionally notes he did not submit his upgrade request sooner because he was under the impression that, in 1970, adverse discharges were automatically upgraded. 3. The applicant's service records show: a. On 14 July 1970, orders inducted the applicant into the Army of the United States (AUS) for a term of 2 years. Following his successful completion of basic combat training, orders transferred the applicant to Fort Ord, CA to attend advanced individual training (AIT) in military occupational specialty 11B (Light Weapons Infantryman); the applicant arrived at Fort Ord on 20 September 1970. b. On 14 October 1970, the applicant's AIT commander granted him emergency leave because of his wife's "nervous condition"; when the applicant failed to return, the AIT unit reported the applicant as AWOL. On 2 November 1970, the applicant returned to military control at his unit; on 4 November 1970, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for having been AWOL from 23 October until 2 November 1970 (a period of 10 days). c. On an unidentified date in December 1970, the applicant departed his AIT unit on Christmas leave; on 9 January 1971, after the applicant did not return from leave, the applicant's AIT unit contacted him at home. (1) The applicant told his leadership he was unable to get back to the unit because he lacked funds; the AIT leadership told the applicant to obtain a transportation request, and the applicant said he would return once he had the money. However, when the applicant failed to show, the AIT unit reported him as AWOL, effective 7 January 1971. (2) In a memorandum, dated 12 January 1971, with the subject: Commander's Inquiry AWOL, the applicant's AIT commander stated the applicant had applied for 1-O (conscientious objector) status and the applicant been working in the mess hall while he gathered supporting documentation. The mess steward indicated the applicant was doing a fine job, but had declared he would never stay in the infantry. (3) Effective 6 February 1971, the applicant's AIT unit dropped him from unit rolls. d. On 14 May 1971, civilian authority arrested the applicant, and, on 25 May 1971, returned the applicant to military control; orders, dated 27 May 1971, assigned the applicant to the U.S. Army Personnel Control Facility (PCF) at Fort Knox, KY. On 3 June 1971, the PCF reported the applicant as AWOL and dropped him from unit rolls, effective 7 June 1971. e. On 16 October 1971, civilian authority arrested the applicant and returned him to military control, on 2 November 1971; the PCF placed the applicant in confinement until 6 December 1971. f. The applicant's separation packet is not available for review. However, the applicant's service records do include a DD Form 214, which confirms, on 20 December 1971, the applicant was discharged under other than honorable conditions, per chapter 10 (Discharge for the Good of the Service), AR 635-200 (Personnel Separations – Enlisted Personnel). The applicant's DD Form 214 also shows he completed 5 months and 25 days of his 2-year AUS service obligation, with three periods of lost time (respectively, 23 October to 1 November 1970 (10 days); 7 January to 31 May 1971 (138 days); and 3 June to 6 December 1971 (152 days). The DD Form 214 lists no awards or decorations. 4. The applicant acknowledges his misconduct, but asserts he simply wanted to take care of his pregnant wife after she suffered a series of complications. He decided to go AWOL because a military lawyer advised him this would result in the applicant's discharge; however, once he realized they were not looking for him, the applicant decided to turn himself in. He did not submit his upgrade request earlier because he thought the Army would upgrade his character of service automatically. a. During the applicant's era of service, Soldiers charged with UCMJ violations that which included a punitive discharge among the maximum punishments could voluntarily request separation under chapter 10, AR 635-200. (1) Because the applicant's separation packet is not available for review, we are unable to determine the precise circumstance(s) that led to his discharge. However, the evidence of record shows he had two periods of AWOL that exceeded 30 days; per the Manual for Courts-Martial, in effect at the time, violations of Article 86 (AWOL for more than 30 days), UCMJ, included a punitive discharge among the maximum punishments. (2) Because the applicant's service record contains his DD Form 214, showing both the reason and authority for his separation, the Board presumes the applicant's leadership properly completed his discharge action. The absence of his separation packet does not represent an administrative irregularity in this case because the version of the military personnel records regulation in effect at the time (AR 640-10 (Individual Military Personnel Records)) did not require separation documents to be permanently placed in the Soldier's official military personnel file (OMPF). b. Regarding the applicant's comment that he thought the Army would upgrade his character of service automatically, the Army has never had a policy of automatic upgrades. Applicants have been required to submit applications, within statutory time limits, to the Army Discharge Review Board and/or the ABCMR. c. 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: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant statement, his record of service, documents provided by the applicant, the frequency and nature of his misconduct and the reason for his separation. The applicant provided no post-service achievements or letters of support to weigh a clemency determination. The Board found insufficient evidence of in-service mitigating factors for the misconduct. 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 XX 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. ADMINISTRATIVE NOTE(S): Not Applicable 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. Army Regulation 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-13a (Honorable Discharge). An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. Commanders were to give due consideration to the Soldier's age, length of service, and general aptitude. Where there were infractions of discipline, commanders were to assess the extent of those infractions as well as the seriousness of the offenses. b. Paragraph 1-13b (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. c. 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. Commanders were to ensure the request for discharge was a personal decision, free of coercion, and that the commanders gave the Soldier a reasonable amount of time to consult with counsel. Once the Soldier made the decision to request discharge, he/she had to put it in writing and counsel was required to sign as a witness. On approval, an under other than honorable conditions character of service 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 Article 86 (AWOL for more than 30 days), UCMJ, included a dishonorable discharge. 4. AR 600-200 (Enlisted Personnel Management), in effect at the time, prescribed policies and procedures for the personnel management of enlisted Soldiers. Paragraph 7-30b (3) (Reasons for Reduction – Approved for Discharge from Service with an Undesirable Discharge) stated, when a general court-martial authority (GCMCA) decided to discharge a Soldier under other than honorable conditions, the GCMCA would concurrently order the reduction of the Soldier to the lowest enlisted grade. Board action was not required for this reduction, and the regulation did not specify how separation authority was to notify the Soldier. 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. 6. AR 15-185 (ABCMR), paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity, which means the Board presumes what the Army did was correct. 7. AR 640-10, in effect at the time, did not require the permanent placement of separation documents in a Soldier's OMPF. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210007833 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1