ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 May 2019 DOCKET NUMBER: AR20160018790 APPLICANT REQUESTS: * In effect, reconsideration of his earlier request to upgrade his undesirable discharge under other than honorable conditions to general under honorable conditions * Change the narrative reason for separation * Permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Army Discharge Review Board) * DD Form 214 (Report of Separation from Active Duty) * CONARC (Continental Army Command) Form 578-R (Individual Training Record) * College Transcript * Father's death certificate * Presidential recognition of his father's military service * Mentorship letter * Occupational Safety and Health Administration (OSHA) certification * Hall of Fame documentation * Court Order for legal name change FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC91-06554 on 4 March 1992. 2. The applicant states, in effect, as a layman, he lacks an understanding of military and Federal/State laws. He acknowledges he made a grave mistake and he should have sought legal help. a. While on active duty, his leadership granted him leave from 17 April until 15 May 1975. He had exhausted his leave by 15 May 1975; because he was on a 2-year enlistment, he had only limited leave available. b. He contacted his commander on 14 May 1975 and requested excess leave; his commander advised him if he did not return by 15 May 1975, he would reported as absent without leave (AWOL). He told his commander he was needed at home; he was the oldest of five children, and the son of an abused, divorced mother. He informed his commander the need for him to remain home was so great, he would accept the punishment for AWOL, which he understood to be nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ). On 25 May 1975, while still at home, and now in an AWOL status, his father was murdered. This incident cause him to suffer so much, he ended up being AWOL for 101 days. c. At age 19, with broken dreams, he realized remaining AWOL would only make things worse; on 16 September 1975, he turned himself in at Fort Knox, KY. In the back of his mind, he figured he would get things together and try to reenlist; however, this never happened. As a Soldier, he was keenly aware of Army values, as well as the oath he had taken when he enlisted; he affirmed he fell below these values. The applicant listed each of values and provided definitions. Due to the impact of his father's murder, he felt he could not live up to the Soldier's Code; for that reason, he felt it was best to request separation. d. During the more than 41 years since his discharge, he has achieved some notable accomplishments. He returned to college at age 57 and earned his Associate's Degree; he also completed 45 hours of classroom instruction on dependency and addiction. Since 2009, he has been a mentor in the Big Brother/Big Sister program and, in 2013, obtained his OSHA (Occupational Safety and Health Administration) certification and was inducted into his State's Former Boxer's Hall of Fame (he was part of the 1980 Olympic Boxing Team). On 29 June 2005, he legally changed his name to X__ X__, based on researching his family history. 3. The applicant provides documents affirming his post-service accomplishments; he also provides his father's death certificate and a court order reflecting his name change. 4. The applicant's service records show: a. He enlisted into the Regular Army on 4 November 1974 for a 2-year term; he was 18 years old. On completion of basic combat training (BCT), orders transferred him for completion of advanced individual training (AIT). b. On 4 March 1975, his AIT leadership promoted him to private/E-2. On 11 March 1975, the applicant accepted NJP for failing to obey an order to fall into formation. c. After graduating from AIT, orders reassigned him to the 21st Adjutant General Replacement Battalion in Germany; his AIT leadership placed him on leave for the period 17 April through 15 May 1975. On 16 May 1975, his unit in Germany reported him AWOL. c. On 24 August 1975, the applicant surrendered himself to military authority at Fort Knox; orders assigned him to the Fort Knox U.S. Army Personnel Control Facility (PCF). On 29 August 1975, his PCF commander preferred court-martial charges against him for AWOL from 16 May until 24 August 1975 (100 days). d. On 5 September 1975, after consulting with counsel, he requested discharge for the good of the service, in-lieu of trial by court-martial, under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). (1) In his request, the applicant affirmed no one subjected him to coercion and counsel had advised him of the implications of his request; he acknowledged he was guilty of the charge. (2) He also elected to submit a statement in his own behalf; he wrote, in effect, he had wanted to be a Soldier, so he enlisted into the Army; a death in his family caused him to go AWOL. The Army was not a bad organization; it was just that he had family problems and was needed at home very badly. He indicated he would be very upset (though not violently) if his discharge was not approved. e. Effective 5 September 1975, his PCF leadership placed him on excess leave until 2400 hours, 25 September 1975. On 10 September 1975, the separation authority approved the applicant's request and directed his undesirable discharge under other than honorable conditions; he also ordered the applicant's reduction to private/E-1. f. On 26 September 1975, the applicant failed to return from excess leave. Also on 26 September 1975, he was separated with an undesirable discharge under other than honorable conditions. His DD Form 214 showed he had completed 7 months and 14 days of his enlistment contract; the form also reflected 101 days of lost time (100 days of AWOL plus one day for failing to return from leave). He was awarded or authorized a marksmanship qualification badge. Item 27 (Remarks) showed the comment "Conduct triable by court-martial." g. On 31 May 1990, the applicant petitioned the ABCMR, requesting an upgraded discharge and a change in his reenlistment code. (1) He explained his reasons for going AWOL, highlighted his achievements during BCT and AIT, and detailed the impact of his father's murder. He provided news articles about his father's murder, as well as numerous certificates and letters of support. (2) The Board determined the applicant had not applied within the statutory 3-year time limit; in addition, the evidence he presented was not sufficient to warrant his requested relief. 5. Regarding the applicant's request for a personal appearance, AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the Board; however, a Board panel or the Director, ABCMR may authorize a request for a hearing on a case-by-case basis. 6. The applicant requests reconsideration of his earlier request for an upgrade in character of service. He contends, in effect, his father's murder caused him to remain AWOL for an extended period; since his discharge, he has achieved numerous accomplishments which merit the Board's favorable consideration. While on active duty, he was AWOL for over 30 days; per the UCMJ, the maximum punishment for this offense included a punitive discharge. Soldiers charged with UCMJ violations, for which a punitive discharge was a punishment, could request separation under chapter 10, AR 635-200; such requests were voluntary and offered in-lieu of trial by court-martial. 7. The applicant also requests a change in the narrative reason for separation. Per AR 635-5-1 (Separation Program Designators (SPD)), in effect at the time, the narrative reason for separation was linked to the discharge authority. Soldiers separated under chapter 10, AR 635-200 were required to show the following narrative reason for separation: "Conduct Triable by Court-Martial." 8. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AC91-06554 on 4 March 1992. After review of the application and all evidence, the Board determined that there is sufficient evidence to grant partial relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found the statement and evidence of honorable post-service achievements to be compelling. The Board agreed that the applicant’s case warrants clemency in that the applicant’s post-service achievements have mitigated the minor misconduct that resulted in the discharge characterization. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing the following amendments: * item 24 (Character of Service) to "General Under Honorable Conditions" * item 25 (Separation Authority) to "Army Regulation 635-200, paragraph 5-3" * item 26 (Separation Code) to "JFF" * item 27 (Reentry (RE) Code) to "3" * item 28 (Narrative Reason for Separation) to "Secretarial Authority" 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. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-9e (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. b. 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. Once approved, an undesirable discharge was normally furnished, but the discharge authority could direct either an honorable or general discharge, if warranted. 2. 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. 3. AR 600-200 (Enlisted Personnel Management System), in effect at the time, stated in paragraph 7-64c (Reasons for Reduction – Approved for Discharge from Service with an Undesirable Discharge), Soldiers being separated with an undesirable discharge were to be reduced to the lowest enlisted grade. 4. AR 635-5-1 (SPD), in effect at the time, provided guidance for listing separation authorities, as well as their associated SPD codes and narrative reasons for separation. Soldiers separated under chapter 10, AR 635-200 were required to show the following narrative reasons for separation: "Conduct Triable by Court-Martial." 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160018790 7 1