ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20160013768 APPLICANT REQUESTS: * A upgrade of his under other than honorable conditions discharge * Correction of Lost Time APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Certificate of Achievement * Photograph, unidentifiable * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Standard Form 180 (Request Pertaining to Military Records), 23 April 2012 * Standard Form 180, 17 September 2012 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 states in effect that he was provided orders at Fort Leonard Wood, MO and informed not to open the file until he arrived at Fort Dix, NJ for in processing. He wants tribe benefits, so he needs an upgrade to honorable. 3. The applicant provided: a. A self-authored statement which states he is 65 years old with a lack of memory, but he will provide as much information as he can. He arrived at Fort Leonard Wood about three week early, trained in many areas and learned how to operate the M-60 machine gun and how to approach Vietnam Village. After several weeks of waiting for his orders, when he finally received them, he was told not to open the packet until he arrived at Fort Dix. Once he arrived at Fort Dix, he was assigned to the overseas company and that’s when he gave the orders to the clerk. He was transferred to a waiting company after he said yes that he would go to Vietnam. While there, he was put on various duties as he continued to wait to be reassigned. He wants an upgrade so that his tribe can assist him in getting benefits. b. The Army Training Center, Infantry and Fort Ord, CA certificate of achievement for recognition of outstanding aptitude, attention to duty, and high standard of conduct displayed during basic combat training. c. One photograph which is unidentifiable. d. His DD form 214 which shows he enlisted in the Army on 8 October 1969. e. The National Personnel Records Center response letter to the applicant replying his request for his 4. A review of the applicant’s service record shows the following: a. Having had prior service in the U.S. Army Reserve, he enlisted in the Regular Army on 8 October 1969. b. On 24 April 1970, he was convicted by a special court-martial of one specification of being absent without leave (AWOL) from 8 February 1970 to 11 March 1970. The court sentenced him to perform hard labor for 45 days, forfeiture of $50.00 per month for 3 months, and reduction to E-1. The convening authority approved the sentence. c. He received non-judicial punishment on 28 July 1970 for being AWOL from 21 May 1970 to 10 July 1970. d. DA Form 458 (Charge Sheet), dated 4 April 1972 reflects court-martial charges were preferred against the applicant for one specification of AWOL from 23 November 1971 to 4 April 1972. e. He was informed of his rights to legal counsel and he consulted with legal counsel on 4 April 1972. He consulted with counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. Subsequent to receiving legal counsel, he voluntarily requested discharge under the provision of AR 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. In his request for discharge, he acknowledged his understanding that: * by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of an undesirable discharge * he acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected to submit a statement f. In his statement, he stated that he was having difficulty at home and could not adjust to the military life. He wanted to get out of the Army to seek employment to take care of his family. g. The chain of command recommended approval. h. On 7 April 1972, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, chapter 10, for the good of the service and directed that he be reduced to the lowest enlisted grade furnished an undesirable discharge certificate. i. The applicant was discharged on 11 April 1972. His DD Form 214 shows he was discharged under the provisions of chapter 10 of AR 635-200 with an under other than honorable conditions characterization of service. He completed 2 years, 1 month, and 21 days of active service, and he had lost time of 133 days, from 23 November 1971 to 3 April 1972. 5. By regulation AR 635-200, chapter 10 states that an individual 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. The request may be submitted at any time after charges have been preferred. An Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 6. By law and regulation, periods of AWOL, confinement, and desertion are considered lost time which is not creditable service for pay, retirement, or veterans' benefits. The lost time is required to be listed on the DD Form 214 even if the periods of time lost were later made up. 7. In reaching its determination, the Board can consider the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that partial relief was warranted. Based upon the type of misconduct, the passage of time and the guidance on clemency, the Board concluded that granting clemency in the form of upgrading the applicant’s characterization of service to Under Honorable Conditions (General) was appropriate. However, the Board also concluded that restoring any of the lost time within the record the applicant had no merit and recommended that portion of the request be denied. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by upgrading his characterization of service to Under Honorable Conditions (General). 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to correcting or restoring any lost time within the military service record of the applicant. 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 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service. 3. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable discharge) states an honorable discharge is a separation with honor. 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. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). b. Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharged because of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. c. Chapter 10 of this regulation states that an individual 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. The request may be submitted at any time after charges have been preferred. An Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 4. Army Regulation 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214. The purpose of the separation document is to provide the individual with documentary evidence of their military service. Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214. The version of the regulation in effect at the time stated Item 30 shows mandatory entries. One of those entries pertained to time lost under Title 10, U.S. Code, section 972. The regulation requires that the dates of time lost during the current enlistment will be entered on the DD Form 214. For enlisted personnel, the inclusive periods of time lost to be made good under Title 10, U.S. Code, section 972, and periods of non-inclusive time after ETS will be entered. Time lost under Title 10, U.S. Code, section 972, is not creditable service for pay, retirement, or veterans' benefits; however the Army preserves a record of it (even after it has been made up) to explain which service between the date of entry on active duty and the date of separation is creditable service. 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 based on 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. ABCMR Record of Proceedings (cont) AR20160013768 4 1