ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 July 2019 DOCKET NUMBER: AR20160017889 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) * DD Form 149 (Application for Correction of Military Record) 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: a. At the time of his discharge, he was emotionally immature and experiencing extreme mental health issues related to his marriage. Since then, he has continued his education, remarried (married for 33 years at the time of his application), maintained long-term, full-time employment (established a successful business), volunteers within his community. The applicant is now a well-respected husband, father, grandfather, and member of society. b. Now, he’s dealing with a long-term health issue, is no longer able to work, and needs major surgery. The applicant and his wife will be or have lost their health insurance related to his prior employment. He hopes to be able to qualify for some benefits through the Department of Veterans Affairs (DVA). c. He regrets his actions and conduct during his time in the Army. He states he continues to learn the value of our military and the extent of the sacrifices made by so many. The applicant shares that he is very thankful for the education he received while in the Army. He was able to get his General Education Diploma (GED), which has proven invaluable. He has also completed further training to qualify for better jobs. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 1 May 1967. b. He accepted non-judicial punishment (NJP) under the provisions of Article 15 on/for: * 3 August 1967, for failing to go to his appointed place of duty at the prescribed time * 23 August 1967, for failing to go to his appointed place of duty at the prescribed time * 26 April 1968, for absenting himself from his organization without proper authority from on or about 19 February 1968 through on or about 28 March 1968; his punishment consisted in part of a reduction in rank to Private/E-2 c. DD Form 493 (Extract of Military records of Previous Convictions), dated 19 February 1970, reflects the applicant was charged by a special court-martial (SCM) (SCM number 151, issued by Headquarters, 46th General Support Group, Fort Devens, MA), on 17 December 1968, with one specification of being AWOL from his organization without proper authority from 21 September 1968 to on or about 27 November 1968. His sentence as approved consisted in part of a reduction in rank to private/E-1. d. DD Form 458 (Charge Sheet), dated 20 February 1970, reflects the applicant was charged with: * one specification of absenting himself from his unit from 11 April 1969 until on or about 7 October 1989, without authority * one specification of absenting himself from his unit from 8 November 1969 until on or about 2 February 1970 e. Also on 3 March 1970, a psychiatric evaluation was requested by the Provost Marshall’s office, Fort Devens, MA to the Community Mental Health Center (CMHC), on behalf of the applicant. The CMHC psychiatrist opined, based on a review of the applicant’s past and recent personal history (at that time) and a mental status examination, no psychiatric disease was found. The psychiatrist stated, the applicant was mentally competent at the time to distinguish right from wrong, able to adhere to the right, and can understand and participate in administrative proceedings. The psychiatrist granted clearance for any administrative action deemed appropriate by the applicant’s command. f. On 6 March 1970, he voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service. 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 accepted 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 was advised he could submit any statements he desired in his own behalf * he elected not to submit any statements in his behalf g. On 10 March 1970, his commander recommended him for discharge, for the good of the service in accordance with AR 635-200, chapter 10. He also recommended the applicant receive an undesirable discharge. The recommendation was endorsed by the applicant’s intermediate commander on 13 March 1970. h. The separation authority approved the applicant's request for discharge on 25 March 1970, and ordered him discharged under the provisions of AR 635-200, separation program number (SPN) 246, be reduced in rank to private/E-1, and issued a DD Form 258A (Undesirable Discharge Certificate). i. The applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), shows he was discharged on 2 April 1970, in the rank of private/E-1, under the reason and authority of AR 635-200, SPN 246 (Administrative Proceedings). He completed 1 year, 5 months, and 6 days of active military service with lost time during the following periods: * 19 February to 27 March 1968 * 28 March to 9 May 1968 * 16 May to 14 June 1968 * 21 September to 19 October 1968 * 20 October to 2 December 1968 * 3 December 1968 to 26 March 1969 * 11 April to 6 October 1969 * 7 October to 4 November 1969 * 8 November 1969 to 1 February 1970 * 2 February to 1 April 1970 j. Item 13a (Character of Service) of his DD Form 214, shows he was given an under other than honorable conditions 4. On 9 April 2019, a medical advisory opinion was received from the Army Review Boards Agency (ARBA) senior medical advisor in the processing of this case. The medical advisor opined: a. there was insufficient evidence to mitigate the applicant’s misconduct: There was also insufficient evidence to support the applicant’s contention that his misconduct was due to severe behavioral health issues. Without medical documentation of a behavioral health diagnosis during his time in the U.S. Army, no statement regarding medical mitigation can be made. b. The psychiatric evaluation requested by the Provost Marshal on 3 March 1970 indicated that the applicant met medical retention standards at the time he was administratively separated for repeated AWOL. 5. The applicant was provided a copy of this advisory opinion on 12 April 2019 to give him an opportunity to submit a rebuttal and/or comments; however, he did not respond. 6. AR 635-5-1 (Personnel Separations-Separation Program Designators), in effect at the time, Separation Program Designator (or number) 246 is placed on separation documents for enlisted personnel who are discharged for the good of the service under the provisions of AR 635-200, chapter 10. 7. AR 635-200 provides: a. 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. When a soldier is discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. 8. The Board should consider the applicant’s submissions 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 relief was not warranted. Based upon multiple lengthy AWOL offenses and a lack of mitigating reasons provided by the applicant for them, the Board concluded that the characterization of service received at the time of discharge 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 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 40-501, chapter 3, provides the various medical conditions and physical defects which may render a Soldier unfit for further military service. The medical conditions and physical defects, individually or in combination, are those that: a. Significantly limit or interfere with the Soldier’s performance of their duties. b. May compromise or aggravate the Soldier’s health or well-being if they were to remain in the military service. c. May compromise the health or well-being of other Soldiers. d. May prejudice the best interests of the Government if the individual were to remain in military service. 3. Army Regulation 635-5-1, Appendix, in effect at the time, Separation Program Designator (or number) 246 is placed on separation documents for enlisted personnel who are discharged for the good of the service under the provisions of AR 635-200, chapter 10. 4. AR 635-200, in effect at the time, governs the separation of enlisted personnel. a. Paragraph 3-7a states that an honorable discharge is given when the quality of the Soldier's service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b states that a general discharge is a separation from the Arm y 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 of that regulation provides, in pertinent part, 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. 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 the application of their equitable relief authority. In determine 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. ABCMR Record of Proceedings (cont) AR20160017889 6 1