ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 January 2020 DOCKET NUMBER: AR20160017631 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * Letter from the National Personnel Records Center 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 (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 essentially he needs the upgrade for Department of Veterans Affairs benefits. In a personal statement, he explains the circumstances that led to his discharge. He chronicles his enlistment and reporting to his unit, being absent without leave (AWOL) and the challenges he had with his unit. He states he takes responsibility for his actions. He talks about an injury to his leg during a lengthy road march. He was later hospitalized for his knee injury and pain, in Santa Barbara, CA. He states he essentially went AWOL because he needed to take care of a left leg injury sustained during a march in May 1977. 3. Review of the applicant’s service records shows: a. The applicant enlisted in the Regular Army on 22 October 1974. Following completion of training, he was assigned to Fort Ord, CA. b. He accepted nonjudicial punishment under Article 15 of the Uniform Code of military Justice on/for: * 27 September 1976, failing to go at the time prescribed to his appointed place of duty; his punishment consisted in part of reduction to private/E-2 * 23 November 1976, failing to go at the time prescribed to his appointed place of duty; his punishment consisted in part of reduction to private/E-2 * 3 May 1977, being absent without leave (AWOL) from 25 to 26 April 1977 c. On 13 January 1977, he was convicted by a summary court-martial of one specification of being AWOL from 28 December 1976 to 4 January 1977. The court sentenced him to forfeiture of pay and hard labor for 40 days without confinement. d. On 2 June 1977, he again departed his unit in an AWOL status and on 24 June 1977, he was dropped from the rolls as a deserter. e. On 5 December 1977, after having failed to return, court-martial charges were preferred against him for being AWOL from 2 June 1977 to an undetermined date (pending his return). f. He ultimately surrendered to military authorities on 12 July 1978. He was assigned to the Personnel Confinement Facility, Fort Ord, pending disposition of the court-martial charge(s). g. The complete facts and circumstances concerning the applicant's discharge are not available for review with this case. However, his records contain: (1) Orders 236-201, issued by Headquarters, 7th Infantry Division, Fort Ord, on 24 August 1978, discharged the applicant under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), effective 18 August 1978, in the grade of E-1. (2) His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), showing he was discharged on 18 August 1978 under the provisions of AR 635-206, separation program number (SPN) 246 (chapter 10, in lieu of trial by court- martial). His service was characterized as under other than honorable conditions and he was issued an Under Other Than Honorable Conditions Discharge Certificate. This form also shows he completed 2 years, 8 months, and 8 days of active service, and he had 414 days of lost time.. h. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 4. The Army Review Boards Agency medical advisor reviewed his case for the left leg condition that may have warranted separation through medical channels; and/or evidence of a medical disability or condition which would support a change or reason for the discharge in this case. The medical advisor rendered an advisory opinion on 25 November 2019 and stated: a. Based on review of available records the applicant did not have psot-traumatic stress disorder (PTSD) or another boardable behavioral health condition at the time of the applicant’s military service. The applicant did not report symptoms consistent with a behavioral health diagnosis and he was not diagnosed with such during service. The applicant did report a head injury during the 14 July 1978 discharge exam. It is noted he had been AWOL the prior 405 days. The applicant did not report a head injury during the 20 April 1977 discharge exam (the exam for Chapter 5). The provider did not document any specific findings related to a head injury during the discharge exam. b. He indicates that during service, he sustained injury to the left leg. The discharge exam did not indicate any residuals from the injury and the applicant did not report such at the time of discharge. Based on available records, the applicant did not have a medical condition that failed retention standards IAW (in accordance with) Army Regulation (AR) 40-501 (Standards of Medical Fitness), warranting a separation through medical channels. c. He had two discharge exams. One in April 1977 for Chapter 5 separation and the last one in July 1978 for Chapter 10 separation. It is the reviewer’s opinion that the applicant’s left leg condition was duly considered during separation processing. A review of the available documentation did not found evidence of a medical disability or condition which would support a change or reason for the discharge in this case. d. Records indicate the applicant was already pending a Chapter 5 separation (in April 1977) prior to the leg injury in May 1977 that he reports led to the final period of unauthorized absence. Based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health conditions for the offenses which led to his separation from the Army. 5. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or additional comments. The applicant did not respond. 6. By regulation (AR 635-200), 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 and must include the individual's admission of guilt. A discharge under other than honorable conditions is normally considered appropriate. 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 found relief was not warranted. Based upon a relatively short term of honorable service completed prior to a pattern of misconduct, to include a lengthy periods of AWOL, the Board concluded that the characterization of service received at the time of separation was appropriate. 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. 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. Chapter 10 of the regulation in effect at the time (and the version currently in effect) provides 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 and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a of the regulation currently in effect provides 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. c. Paragraph 3-7b of the regulation currently in effect provides 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. 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. 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. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20160017631 5 1