ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 16 October 2019 DOCKET NUMBER: AR20170001905 APPLICANT REQUESTS: upgrade of his under conditions other than honorable to a general discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) 18 January 2017 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 10 April 1972 * DA Form 3647-1 (Clinical Record Cover Sheet) * DA Form 2985 (Patient Admission Information) 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, he was 17 years old when he went in the service. He served at Ft Bragg, Sam Houston, Texas then Korea. He was there 2-3 days before he received a Red Cross message. He was given 30 days leave to return home to take care of his mother who had a kidney removed. His oldest brother was in Vietnam and he was the second oldest. When his leave was up, he was afraid something would go wrong with his mother so he did not go back. He lost his father before he joined the service so he went in to try and do his duty. He sent money home to his mother to take care of his other seven siblings. He tried to get his discharge changed. He was young and trying to help his family. He feels the discharge is in error because he was not properly represented in his first hearing (he previously applied to the Army Discharge Review Board (ADRB)). He states they acted like he wasn’t even in the room. They asked a question then talked for a few minutes, he answered the best he could. He did not have a lawyer. He had an eighth grade education and received his GED in the service. He feels if he would have had a lawyer he would have asked them to ask questions. He is older now and retired from working as a mechanic most of his life just to make ends meet. He feels if he could have gotten a general discharge and had someone there to help him (a lawyer or a judge advocate general) there would have been a better outcome when he had the hearing with ADRB. He doesn’t feel he was undesirable. He states he was young and went in the service to try to help his family make ends meet. 3. The applicant provides: * DA Form 2985 (Patient Admission Information) dated 14 March 1972 shows admission information for the applicant * DA Form 3647-1 (Clinical Record Cover Sheet) dated 16 March 1972 which shows in block 36 (Diagnosis Operations and Special Procedures) of muscle spasm 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 29 August 1968. b. He accepted non-judicial punishment under the provisions of Article 15 on/for: * 29 November 1968; for failing to go at the time prescribed to his appointed place of duty, to wit, bed check * 3 February 1969, for being absent from his unit without proper authority on 5 January 1969 c. On 18 February 1969 Summary Court Martial Order Number 20 shows: * 7 February 1969 at 2100 hours, without authority, absent himself from his unit and did remain so absent until 2300 hours, 7 February 1969 * 8 February 1969 at 0700 hours, without authority, absent himself from his until and did remain so absent until 2330 hours, 8 February 1969 * 9 February at 0700 hours without authority, absent himself from his unit and did remain so until 9 February 1969 at 2300 hours * His punishment consisted in part, confined to hard labor for one month * He plead guilty to specifications and charge and was found guilty on the specifications and the charge * 14 February 1969 sentence adjudged * 18 February 1969 approved and ordered executed d. 4 March 1969 Summary Court Martial order Number 31 shows: * 7 February 1969 at 2100 hours, without authority, absent himself from his unit and did remain so absent until 2300 hours, 7 February 1969 * 8 February 1969 at 0700 hours, without authority, absent himself from his until and did remain so absent until 2330 hours, 8 February 1969 * 9 February at 0700 hours without authority, absent himself from his unit and did remain so until 9 February 1969 at 2300 hours * His punishment consisted in part, confined to hard labor for one month * He plead guilty to specifications and charge and was found guilty on the specifications and the charge * 14 February 1969 sentence adjudged * The actions taken on 18 February 1969 was withdrawn and the following substituted therefor: Approved and executed, the prisoner will be confined in the Consolidated Correction Facility and the confinement will be served therein, or elsewhere as competent authority may direct. * Summary Court Martial Order Number 20, 18 February 1969, was rescinded e. On 24 October 1969, DD Form 458 (Charge Sheet), shows court martial charges were preferred against the applicant for two specifications of absent without leave from 13 April 1969 to on or about 25 June 1969 and 30 July 1969 to on or about 26 September 1969 and one specification of escape from lawful confinement in post stockade on or about 30 July 1969. f. On 18 September 1970 the applicant 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: * if his request for discharge was accepted, he might be discharged under other than honorable conditions and furnished an undesirable discharge certificate. * as a result of the issuance of such a discharge, he shall be deprived of many or all army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State law. * he might expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge * once his resignation was submitted, it might be withdrawn whether or not accepted, only with the consent of the commander exercising general curt martial jurisdiction over him * he made the statements on his own behalf and submitted it * prior to completing the for, he was afforded the opportunity to consult with appointed counsel or military counsel of his own choice * He consulted with counsel who fully advised him on the matter g. 23 September 1970 Special Orders Number 266 shows the applicant was returned to military control from an AWOL status, having been dropped from the rolls, effective 9 September 1970. h. On 10 February 1971 the military police reports shows he was apprehended by civilian police for failure to appear for court (civil) and AWOL. He was returned to military control on 8 February 1971. i. 16 February 1971 Special Orders Number 32 shows the applicant was returned to military control from an AWOL status, having been dropped from the rolls, effective 5 February 1971. His status was, confined to post stockade. j. 22 March 1971, the applicant 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: * if his request for discharge was accepted, he might be discharged under other than honorable conditions and furnished an undesirable discharge certificate. * as a result of the issuance of such a discharge, he shall be deprived of many or all army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State law. * he might expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge * once his resignation was submitted, it might be withdrawn whether or not accepted, only with the consent of the commander exercising general curt martial jurisdiction over him * he made the statements on his own behalf and submitted it * prior to completing the for, he was afforded the opportunity to consult with appointed counsel or military counsel of his own choice * He consulted with counsel who fully advised him on the matter k. 23 March 1971, the applicant’s commander endorsed and approved the applicant’s request for discharge. l. The separation authority approved separation on 31 March 1971, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, and directed that he be reduced to private E-1, and furnished an undesirable discharge certificate. m. Special Orders Number 49 dated 10 March 1972 shows he was returned to military control from AWOL status after having been dropped from the rolls effective 29 January 1972. He was confined to post stockade. n. Special Orders Number 68, dated 6 April 1972, shows the applicant was reassigned to the separation transfer station or transfer point for separation processing. o. Special Orders Number 69, dated 7 April 1972, shows discharge effective date of 10 April 1972, under conditions other than honorable for the good of the service. p. The applicant was discharged on 10 April 1972. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) reflects he was discharged in accordance with Army Regulation 635-200, chapter 10, SPN 246 (for the good of the service) with an under conditions other than honorable. He completed 2 years, 2 months, and 1 day with 397 days lost from 30 September 1970 through 9 February 1971; 20 February 1971 through 9 March 1971; 2 April 1971 through 22 February 1972 and from 26 August 1971 through 22 February 1972 and 23 February 1972 thru 9 April 1972. 5. By regulation, (AR 635-200) 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. * item 24 (Character of Service), Correct entry is vital since it affects a Soldier’s eligibility for post-service benefits. Characterization or description of service is determined by directive authorizing separation. The character of service must be one of the seven designations: honorable, under honorable conditions (general), under other than honorable conditions, bad conduct dishonorable, dismissed or uncharacterized 6. He applied to the Army Discharge Review Board (ADRB) within that board's 15-year statute of limitations. The ADRB letter dated 3 August 1982 reflects the Secretary of the Army has directed that the applicant be advised that his request for a change in the type and nature of his discharge had been denied. It further stated that although his case was denied by the ADRB he might apply to the Army Board for Correction of Military Records. That Board was not bound by the decision of the ADRB. 7. 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 review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the short term of honorable service completed prior to a pattern of misconduct which included a lengthy period of AWOL, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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 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), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade and general aptitude. b. Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness, and unsuitability. 3. Army Regulation, (AR 635-200) 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. 4. By regulation (AR 635-200), chapter 10, 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. * Paragraph 5-6 (Rules for Completing the DD Form 214) states for: * item 24 (Character of Service), Correct entry is vital since it affects a Soldier’s eligibility for post-service benefits. Characterization or description of service is determined by directive authorizing separation. The character of service must be one of the seven designations: honorable, under honorable conditions (general), under other than honorable conditions, bad conduct dishonorable, dismissed or uncharacterized 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 based on 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) AR20170001905 6 1