ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 March 2019 DOCKET NUMBER: AR20160016149 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 13 September 2016 * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 13 September 2016 * DD Form 214 (Report of Separation from Active Duty), for the period ending 27 July 1971 * DD Form 257A (General Discharge Certificate), dated 27 July 1971 * Army Discharge Review Board (ADRB) Case Report and Directive, dated 18 July 1977 (two copies) * ADRB Letter, dated 27 June 1978 (three copies) * Discharge Review Board Letter (two copies), undated * Army Reserve Personnel Center Authorization for Issuance of Awards, dated 19 April 1989 * Legal Help for Veterans, PLLC – Attorneys at Law, dated 3 September (year unknown) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); 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: a. He requested that the ADRB upgrade his discharge from dishonorable to honorable on 18 July 1977. He later received a letter from the ADRB informing him that his request had been denied. b. He received a letter from the ADRB dated 27 June 1978, informing him that the ADRB had reviewed his case under the provisions of Public Law 95-126, which further directed The Adjutant General to issue a change to his DD Form 214 to affirm his Department of Defense (DoD) Special Discharge Review Program (SDRP) discharge upgrade under Uniform Standards. c. The letter he received stated "This will enhance your accessibility to VA benefits if you should apply." However, every time he files a claim for benefits he is denied. He has records that state the type of discharge he received was erroneous; however, no one is reading. 3. The applicant enlisted in the Regular Army on 25 January 1968. 4. Special Court-Martial Number 1055, issued by Headquarters, U.S. Army Garrison Troops, Fort Hood, TX on 18 July 1969, shows the applicant was convicted pursuant to his plea of being absent from his organization from on or about 1 June through on or about 15 July 1969. He was sentenced to a forfeiture of $100.00 pay per month for six months. 5. The applicant accepted nonjudicial punishment (NJP) on 26 March 1970, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) overnight. 6. The applicant accepted NJP on 16 November 1970, under the provisions of Article 15 of the UCMJ, for being AWOL from on or about 28 October through on or about 12 November 1970. 7. The applicant accepted NJP on 8 December 1970, under the provisions of Article 15 of the UCMJ, for being AWOL from on or about 23 November through on or about 7 December 1970. 8. Court-martial charges were preferred against the applicant on 10 June 1971 for being AWOL from on or about 21 December 1970 through on or about 22 June 1971. 9. The applicant consulting with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, 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, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial. 10. The separation authority approved the request for discharge on 22 July 1971 and directed the issuance of an Undesirable Discharge Certificate. The applicant was discharged on 27 July 1971, under the stated provisions. His DD Form 214 shows he completed 2 years, 8 months, and 27 days of total active service and that he had 276 days of lost time due to AWOL. He received an Undesirable Discharge Certificate. 11. The applicant was notified on 16 August 1977 that his application for consideration under the DoD SDRP had been examined and that after reviewing the findings and conclusions of the ADRB, the Secretary of the Army directed that his undesirable discharge be upgraded to a general discharge, effective 18 July 1977. 12. The ADRB further reviewed the applicant’s case, in accordance with Public Law 95-126, and noted his undesirable discharge had been upgraded to a general discharge on 18 July 1977, under the DoD SDRP, and by a majority decision it was determined that an affirmation of the general discharge granted under the SDRP was warranted. 13. The applicant was issued a DD Form 215 on 15 July 1978, which amended item 27 (Remarks) on his DD Form 214 to read "DISCHARGE REVIEWED UP PL 95-126 AND A DETERMINATION MADE THAT CHARACTERIZATION OF SERVICE IS WARRANTED BY DOD DIRECTIVE." 14. The applicant’s initial DD Form 214 was voided and he was issued a new DD Form 214 that shows his service was characterized as under honorable conditions (general). 15. Army Regulation 635-200, in affect at that time, set forth the policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of enlisted members for a variety of reasons. 16. The Board should consider the provided evidence and the applicant's self-authored statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board agreed that the applicant's discharge characterization of under honorable conditions was warranted as a result of the misconduct, and an upgrade to honorable is not recommended. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X 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 three 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 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. a. Paragraph 3-7a states that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b states that 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. c. Chapter 10 states that a member 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 in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred. Although an honorable or general discharge is authorized, an undesirable discharge was normally considered appropriate at the time of the applicant’s discharge. 3. The Secretary of Defense directed the Services, on 4 April 1977, to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973 under the program known as the DoD SDRP. This program required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual. 4. As a part of Public Law 95-126 legislation, in October 1978, VA benefits were denied to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector. It also required that the DoD establish historically consistent, uniform standards for discharge reviews. Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs was required. Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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) AR20160016149 5 1