ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 June 2019 DOCKET NUMBER: AR20160018984 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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. When he was drafted at the age of 19 he was willing to serve his country. He was married and had a 15 year old dependent. While going through Basic Combat Training (BCT), he got sick and was hospitalized at the Fort Dix, NJ, Army hospital with a severe upper respiratory infection. He had a fever of 103 degrees and remained there for 3-4 weeks. b. He was told he would have to go through BCT again and he actually enjoyed the routine of BCT except for the running. He could not breathe right so he told his commander and he said he would get over it, but he didn’t and ended up back in the hospital for another few weeks. He recovered and was told he would be “recycled” in BCT for a third time. c. At no time during all of this did his wife receive an allotment. They lost their apartment, furniture, and their car was next. He spoke to the Chaplain and a representative at the Red Cross, and they said there was nothing they could do. They a. suggested going to a psychiatrist, but no one could help. Being young and stupid and not knowing which way to turn, he went absent without leave (AWOL). Before leaving base, he found out his wife was having an affair with his brother-in-law. d. In January 1972, he turned himself in and was put in a “holdover” center at Fort Dix, NJ. He talked to a captain there to see if he was going into the stockade and he said he would recommend him for a general discharge as long as he didn’t go AWOL again. He spent 6 weeks waiting, working as a cook. He kept his word and worked without an issue as a cook, which was fine for him because he didn’t have to run or have trouble with his breathing. e. He again had trouble with his breathing 6 years later and went to the emergency room. He was sent to a cardiac specialist who diagnosed him with bundle branch block (delay or obstruction along pathway the electrical impulses travel to the heart), which makes it difficult for your heart to pump blood efficiently. This was the cause of his difficulty breathing, which in turn made running impossible. f. Despite all of his problems, he did not desert. He loves his country and wanted to complete his service time. He has never been a trouble maker or had any issues with the law and he did earn a National Defense Medal. He has owned his own business for 41 years and holds a pistol permit for New York State, Virginia, and Utah. He is also a New York State notary public and he went back to school to receive his General Education Diploma. He is a hard worker and proud of what he’s accomplished. He has a beautiful home and is dedicated to his new wife of 30 years, with whom he has 5 children and 11 grandchildren. His only regret is his Army discharge. He wants to be able to show his grandkids that he served his country and received a favorable discharge. 3. The applicant was inducted into the Army of the United States on 22 January 1971. 4. He accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) on 3 March 1971, for absenting himself from his unit without authority from on or about 27 February 1971 through 1 March 1971. 5. On 11 January 1972, he was charged with: * being AWOL from his unit from on or about 9 April 1971 through on or about 19 October 1971 * being AWOL from his unit from on or about 29 October 1971 through on or about 10 January 1972 6. On an undated form, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum 1. permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him. He did not submit a statement in his own behalf. 7. On 24 February 1972, his intermediate commander recommended approval of the request for discharge for the good of the service in lieu of trial by court-martial. In his opinion, the applicant had no motivation for continued service and would not respond to either counseling or rehabilitation. The applicant had been medically examined and was qualified for separation. The subsequent approval memorandum from the approval authority is not in the applicant’s available records for review. 8. His DD form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial on 6 April 1972, after 5 months, and 17 days of net active service with 271 days of lost time. His service was characterized as under other than honorable conditions. 9. On 3 February 1978, the Army Discharge Review Board informed the applicant his request for a change in the type and nature of his discharge under the Department of Defense Discharge Review Program (Special) had been denied. 10. On 15 March 2019, the Army Review Boards Agency (ARBA) senior medical advisor provided an advisory opinion. The ARBA senior medical advisor concluded based on the available evidence, there is insufficient evidence of a medical disability or condition that would support a change to the character or reason for the discharge in this case or mitigate the misconduct that led to his separation in lieu of trial by court- martial. A copy of the complete medical advisory was provided to the Board for their review and consideration. 11. The applicant was provided a copy of the advisory opinion on 22 March 2019, and given an opportunity to submit comments, but he did not respond. 12. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. 13. 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 court-martial forum. 1. 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 14. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. 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 the short term of service completed prior to a pattern of misconduct, which included a lengthy AWOL offense, 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. 6/13/2019 X CHAIRPERSON Signed by: 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. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the 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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for a. discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. 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. 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. d. A discharge UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade.