ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 30 March 2020 DOCKET NUMBER: AR20170001153 APPLICANT REQUESTS: an upgrade of his discharge 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) * Continuation Statement, undated * Extract, Department of Veterans Affairs (VA) Form 21-526EZ (Application for Disability Compensation and Related Benefits), undated * Extract, VA Form 21-4138 (Statement in Support of Claim), undated REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-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), in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Chapter 10 provided 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. A discharge under other than honorable conditions is normally appropriate for a Soldier who is discharged in lieu of trial by court- martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. When a member is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. 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 (BCMRs) 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. These factors include the severity of the misconduct and the length of time since the misconduct. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the 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 he has post-traumatic stress disorder from basic training where he was struck multiple times with a rifle and was fearful of his drill sergeants. Additionally, he witnessed other trainees being injured after being struck by military vehicles. Being young and naive, he was fearful of retribution and did not report the abuse by his drill sergeants. After his wife was diagnosed with a serious medical condition (leukemia), his own physical and mental health declined until he became suicidal and was absent without leave (AWOL). 3. On 28 May 1968, the applicant was inducted into the Army of the United States. 4. His records show he was AWOL during the period 10 November 1968 through 23 February 1976. 5. His records show he was dropped from the unit rolls effective 9 December 1968. 6. On 23 February 1976, he was apprehended by civilian authorities and was assigned to the Processing Company, U.S. Army Personnel Control Facility, Fort Ord, CA, effective that date. 7. On 27 February 1976, court-martial charges were preferred against him for violating Article 86 (Absence without Leave) of the Uniform Code of Military Justice for being AWOL from 10 November 1968 through 23 February 1976. 8. On 27 February 1976, he consulted with defense counsel and was informed he was pending trial by court-martial for violation of Article 86 (AWOL). He was advised that if convicted, the authorized punishment may include the issuance of a bad conduct or dishonorable discharge. However, he may submit a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. 9. On 4 March 1976, he voluntarily requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He stated he did not desire further rehabilitation, had no desire to perform further military service, and acknowledged he understood: * if his request for discharge is accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate * as a result of the issuance of such a discharge, he will be deprived of many or all Army benefits as a veteran * he might expect to encounter substantial prejudice civilian life as a result 10. He submitted a statement for administrative purposes, dated 4 March 1976, wherein he stated that a person with domestic problems should not be admitted to the Army, as the individual will only cause problems unnecessarily. His wife is now deceased, and he must care for his four children. If he were return to duty, his children would not have the proper attention and he would most likely be forced to leave again. He understands the impact of an undesirable discharge and is willing to accept it. 11. On 11 March 1976, his immediate commander stated the applicant was counseled regarding other options, to include compassionate reassignment and hardship discharge, but the applicant did not believe he had sufficient grounds to make that request after being AWOL for 8 years. 12. On 18 March 1976 consistent with the chain of command recommendations, the separation authority approved his request for discharge in lieu of trial by court-martial and directed his reduction to the lowest enlisted grade and issuance of an Undesirable Discharge Certificate. 13. On 30 March 1976, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10. His DD Form 214 (Report of Separation from Active Duty) shows: * he completed 6 months and 17 days of net active service during this period * he accrued 2,661 days of lost time from 10 November 1968 through 22 February 1976 * he accrued 26 days excess leave * his lost time totaled 2,687 days 14. On 9 March 2020, the Army Review Boards Agency Psychologist provided an advisory opinion wherein she stated: a. On 1 March 1976, the applicant received a separation physical and was found to meet medical standards. There is no evidence in his application packet, his electronic medical record, or his military medical record to show any behavioral health diagnoses. b. Based on his statement in his military record at the time of discharge, he was AWOL due to his wife's poor health. There is no behavioral health diagnosis to consider with respect to mitigation of his misconduct. 15. On 16 March 2020, Army Review Boards Agency Case Management Division placed his application on hold for 15 days and provided a copy of the medical advisory to the applicant to allow him the opportunity to submit comments. He did not respond. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, his apprehension, the separation counseling and the reason for his separation. The Board considered the review and conclusions of the medical advising official to include the absence of evidence of a behavioral health diagnosis. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170001153 5 1