ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 April 2019 DOCKET NUMBER: AR20170002871 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge. He also requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Record of Trial * 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: * He was never offered any help or treatment with his problems * During integration of colored Soldiers into the Army, he was given an unfair discharge and he was made an example because he is black * He was merely dong the best he could to provide for his family * It is still difficult for him to accept that he was racially discriminated against because of his color 3. He provides his court-martial Record of Trial 4. Review of his service records shows: a. He was inducted into the Army of the United States on 17 January 1969. He was assigned to Fort Benning, GA. a. b. On 23 December 1969, at Fort Gordon, GA, he was convicted by a special court- martial of three specifications of AWOL from 22 July to 15 November 1969, 8 to 13 May 1969, and 12 to 15 December 1969. The court sentenced him to confinement at hard labor for 4 months, forfeiture of pay for 4 months, and reduction to the lowest enlisted grade. The convening authority approved his sentence on 7 January 1970. c. On 14 August 1970, he was convicted by a special court-martial of 4 specification of AWOL from 20 February to 27 March 1970, 1 to 4 April 1970, 6 April to 30 June 1970, 3and 20 June to 76 July 1970. The court sentenced him to confinement at hard labor for 5 months. The convening authority approved his sentence on 20 August 1970. d. On 19 February 1971, his commander initiated a Certificate of Unsuitability for Enlistment/Reenlistment (bar to reenlistment) against him citing his extensive record of being AWOL: * 22 July to 14 November 1969, 116 days * 8 May to 12 May 1969, 3 days * 12 December to 14 December 1969, 3 days * 13 January to 18 January 1970, 6 days * 21 August 1970 to 2 November 1970, 74 days e. On 16 January 1971, he again departed his unit in an AWOL status. He would return to military control on or about 21 March 1971. f. The complete facts and circumstances surrounding his discharge are not available for review with this case. However, his service records contains: (1) Special Orders Number Orders Number 77, issued by the U.S. Army School, Fort Gordon, GA on 18 March 1971, ordering his discharge from the Army under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), effective 22 March 1971, for the good of the service, with an under other than honorable conditions characterization of service. (2) A DD Form 214 that shows he was discharged on 22 March 1971, under the provisions of AR 635-200, chapter 10, for the good of the service, in lieu of trial by court- martial with an under other than honorable conditions discharge. He completed 11 months and 15 days of creditable active service and he had 382 days of lost time. 5. By regulation, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 1. 6. Also by regulation, the issuance of a discharge under the provisions of chapter 10, AR 635-200, requires a Soldier to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial. The characterization of service for such discharge is under other than honorable conditions. 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 relatively short term of service completed prior to multiple lengthy AWOL offenses, the Board concluded that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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. 5/1/2019 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. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), set forth the basic authority for the separation of enlisted personnel. Chapter 10 provides 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 states 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. b. Paragraph 3-7b states 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. 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 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 1. discharge had been for the revised reason or had the upgraded service characterization. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires.