ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: . BOARD DATE: 28 October 2019 DOCKET NUMBER: AR20170003100 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States) * self-authored statement * seven character statements * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) 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 stated he was stationed overseas and requested to remain stateside during his leave at home. He reported to Fort Sill, OK instead of going back overseas to request a hardship discharge. He did not deserve an under other than honorable discharge when the facts were strong in his favor of a hardship discharge or at least transfer due to his mother being ill with heart problems. 3. The applicant provides: a. A self-authored statement, which states in summary the Red Cross assisted him in his travels to Germany and he stayed in New Jersey for three weeks prior to his departure to Germany. His unit in Germany was training for combat at the time. In addition, he would get confused and he has suffered depression and shell shock since being discharged. He joined the Bristow National Guard in 1986 and completed 1 year and was discharged. b. Seven character statements, which states in summary he has suffered some mental issues since being discharged; however, the applicant is a very dependable, warm, kind and a welcoming man. He is an active and valuable member of the community. He is always available to assist in any way requested in the community projects. He is known for his faithful church attendance at his local church. In addition, he regularly volunteers in assisting the elderly citizens in the upkeep of their personal properties, by mowing lawns for ones who are physically unable to do it themselves. He is a veteran who has always demonstrated patriotism toward his country and is respected among local veterans. c. His DD Form 214, which shows his service from 23 June 1971 to 30 May 1972 and his DD Form 215 showing the correction of his discharged date to read 30 May 1973. 4. The applicant’s service record is void of the separation packet and discharge proceedings (i.e. the applicant’s request for discharge for the good of the service, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), his consultation with counsel, the immediate, intermediate commander’s and the approval authority actions). 5. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 23 June 1971. b. His DA Form 20 (Enlisted Qualification Record), dated 1 December 1974 shows in item 44, he was absent without leave (AWOL) 4 to 9 October 1971 c. His DA Form 20 (Enlisted Qualification Record), dated 2 February 1972 shows in item 44, he was absent without leave (AWOL): * 7 August to 21 August 1972 * 18 September to 16 October 1972 * 17 October 1972, absent without leave (AWOL) to dropped from rolls (DFR) * 16 September to 18 October 1972 * 17 October 1972 to 4 May 1973 (DFR) * 8 May 1973 – imprisonment d. Fort Sill, Ok, published Special Orders Number 242 Extract, dated 289 August 1972 show effective 15 August 1972, individual [applicant] was attached Detachment #3, Headquarters, Army Field Artillery Center and Fort Sill, Fort Sill, OK. He was pending decision of request for hardship discharge submitted 29 August 1972. The special instructions states the individual [applicant] was attached at the end of ordinary leave granted per the commander, 94th Engineer Battalion, Darmstadt, Germany. For duty as commanding officer detachment may direct. Special Orders Number 255 Extract, dated 11 September 1972 shows the applicant was relieved from attachment effective 11 September 1972 with a reporting date of 18 September 1972 to return to parent organization. His request for hardship discharge was not favorably considered. Travel time charged as leave time. e. On 30 May 1972, he was discharged from active duty under the provisions of AR 635-200, chapter 10, in-lieu of court martial – for the good of the Service, separation program number (SPN): 246, for the good of the service, his characterization of service is under conditions other than honorable. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 21year, 3 months, and 3 days of active service, and he had 11 days lost time from 4 to 9 October 1971, 7 to 21 August 1972, and 18 September 1972 to 4 May 1973, item 30 (Remarks) shows he had 250 days lost time under Title 10 USC 972. f. His DD Form 215 shows in item 11d (Separation Date) on his DD Form 214 was corrected to read 30 May 1973. 6. The Army Discharge Review Board (ADRB), by letter, on 20 November 2014, to the applicant in response to his request to change his character and/or reason of his discharge determined that his request be directed to the Army Board for Correction of Military Records (ABCMR) for consideration. The ADRB does not have the authority to process applications received from former service members after 15 years from the date of discharge, discharge by General Court Martial, or from those who would like their discharge changed to medical retirement. 7. Soldiers separated under AR 635-200, paragraph 10, in lieu of trial by court martial are assigned the separation program number in accordance with AR 635-5-1 (Personnel Separations – Separation Program Designators). SPN: 246 – Discharged for the good of the Service. 8. The RE Code associated with this separation is RE-4 which applies to persons who separated from last period of service with a nonwaivable disqualification. (Includes persons being separated with a Department of the Army Bar to Reenlistment in effect), in accordance with AR 601-210, (Regular Army and Reserve Enlistment Program) paragraph 3-8. 9. By law and AR 635-200, periods of AWOL, confinement, and desertion are considered lost time which is not creditable service for pay, retirement, or veterans' benefits. The lost time is required to be listed on the DD Form 214 even if the periods of time lost were later made up. 10. By regulation, AR 635-200 provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. 11. The Board should 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 warranted. The applicant’s contentions and letters of support 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. After reporting to Germany, he was listed as AWOL on three occasions, and dropped from the rolls of the Army. He was did not accept responsibility for his actions; however, noted his absence was due to family concerns. Based upon the letters of support, and the length of time that has passed since the misconduct, the Board agreed it appears the applicant has learned from the events leading to his separation and that granting clemency by upgranding his characterization of service to Under Honorable Conditions (General) is now warranted. 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: 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 reissuing him a DD Form 214 for the period ending 30 May 1973 showing his character of service as Under Honorable Conditions (General). 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 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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 (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it issued to a Soldier whose military record is satisfactorily but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of the regulation provides that a Soldier who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The discharge request maybe submitted after the court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. 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 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) AR20170003100 5 1