ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 8 October 2019 DOCKET NUMBER: AR20170001140 APPLICANT REQUESTS: upgrade of discharge from under other than honorable conditions to general under honorable conditions. 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) * character statement from family member, dated 23 November 2016 * Character of discharge (statute subsection 3.12) * VA Form 21-4138 (Statement in Support of Claim), dated 17 January 2017) 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, in effect, under subsection 3.12(a)(6) less than 180 days, (ii) family emergencies, please evaluate in terms of age, cultural background, educational level, and judgmental maturity. The applicant asks the Board to consider his character upgrade based on the attachments provided and statements listed on VA Form 21-4138. 3. The applicant provides: a. A character statement from a family member, which provides, he and the applicant joined the U.S. Army on 22 December 1972, under the buddy system. They completed basic training at Fort Polk, LA, then were assigned to Fort Hood, TX. The family member states he served in an armor division and the applicant served in an engineer unit. The family member further states he and the applicant joined the military with good intentions, integrity, and honesty. He stated the applicant was doing great in the service but after around October 1974, he started to have a difficult time in his unit and was absent without leave (AWOL). He states the applicant served time in the stockade, through completion, at Fort Hood, TX. The family member expressed he believes it was an injustice that the applicant was released from the service without any type of discharge documents, but was told to just go home. b. A 4 (four) page document referencing a statute (subsection 3.12-Character of discharge), showing circled and underlined statements and phrases throughout in reference to termination by discharge or release under conditions other than dishonorable with regard to pension, compensation, dependency, and indemnity compensation. The applicant further referenced being in an AWOL status less than 180 days and taking into consideration reasons for going AWOL. c. VA-Form 21-4138, shows the applicant stated he would go home to visit his parents on weekends. He states he had to rely on public transportation and references specific dates he left his place of duty. He states he requested regular or emergency leave on at least two occasions to support immediate family members who were either having a medical procedure or were severely ill, but his requests were declined by his command. The applicant states he went anyway and was able to see a family member days before passing away. The applicant references a perception of racial bias during his period of service and ask the Department of Veterans Affairs (VA) to consider his rights to entitlements for his service in the U.S. Army. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 29 December 1972 DA Form 3284 (Applicant’s Statement of Name Change), signed by the applicant on 27 December 1972 and 2 witnesses on 29 December 1972, officially authorized the applicant to go by the name of “Edd__ Co__” throughout his service record. b. He accepted non-judicial punishment (NJP) under the provisions of Article 15 on/for: * 18 October 1973, absenting himself from his unit without authority from 1 - 2 October 1973 * 11 February 1974, absenting himself from his unit without authority from 29 - 30 January 1974 * 4 April 1974, failing to go to the prescribed place of duty, at the prescribed time, without authority, his punishment consisted, in part, of a reduction to private/E-1 * 22 April 1974, failing to go to the prescribed place of duty, at the prescribed time, without authority * 10 September 1974, absenting himself from his unit without authority on 19 August 1974 * 16 December 1974, failing to go to the prescribed place of duty, at the prescribed time, without authority * 28 April 1975, failing to go to the prescribed place of duty, at the prescribed time, without authority on 14 and 20 April 1975; his punishment consisted, in part, of a reduction to private/E-2 c. On 10 July 1975, DD Form 458 (Charge Sheet), shows court martial charges were preferred against the applicant for one specification of absenting himself without authority from 5 May 1975 to on or about 9 July 1975. d. On 10 July 1975, the applicant’s immediate commander recommended he receive a trial by Special Bad-Conduct Discharge (BCD) Court-Martial. e. On 17 July 1975, the applicant consulted with counsel and was advised of the contemplated trial by court-martial for an offense punishable by a bad conduct or a dishonorable discharge. Subsequent to that, he requested discharge under the provisions (UP) of chapter 10, (for the good of the service – in lieu of trial by court- martial) AR 635-200. He also acknowledged the following: * he understood that as a result of his request he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate * as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * he could be deprived of his rights and benefits as a veteran under Federal and State law * understood he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge f. On 22 July 1975, his immediate commander recommended discharge under the provisions of chapter 10 of AR 635-200 and to be issued an undesirable discharge. The the recommendation for discharge was endorsed by the applicant’s intermediate commander on 24 July 1975. g. On 25 July 1975, the separation authority approved the discharge “For the Good of the Service”. He directed the charges which form the basis for the action to be withdrawn from trial and dismissed effective the date of the discharge. The authority also directed the applicant be furnished an Undesirable Discharge Certificate and reduced to private/E-1. h. On 14 August 1975, the applicant was discharged, in the rank of private/E-1. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of AR 635-200, chapter 10 and received an under other than honorable conditions character of service. He served 2 years, 4 months, and 7 days of creditable active service. Item 21 (Remarks) of the applicant’s DD Form 214, shows he had 101 days of lost time. 5. By regulation, (AR 635-200), chapter 10 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. 6. 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, the Board determined relief was warranted. The Board considered the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. His offenses were minor in nature and reflect immaturity. Board members agreed that based on recent DOD guidance on liberal consideration, the Board concluded that granting clemency by upgrading the characterization of service to Under Honorable Conditions (General) was appropriate. 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: 1 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 amending his DD Form 214 to show a general, under honorable conditions characterization of service. 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 (Personnel Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. 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. a. Paragraph 3-7a provides an honorable discharge is a separation with honor. 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. Only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted. b. Paragraph 3-7b provides a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member 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. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170001140 4 1