ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 June 2019 DOCKET NUMBER: AR20170008576 APPLICANT REQUESTS: an upgrade of his under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 that he was not given the opportunity to refute the allegations against him and that he was lead to believe his career was over and he was coerced into resigning. He said he was intimidated by a West Point major. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army (RA) on 29 August 1968. b. He was honorably discharged from active duty on 27 August 1970 to accept a commission. A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) was not available in his file. He served 1 year, 11 months, and 29 days of active service before accepting his commission. c. He signed his DA Form 71 (Oath of Office), on 28 August 1970 an became a reserve commissioned officer as a second lieutenant. He entered active duty on the same date. d. He served in Vietnam from 6 January 1973 to 4 February 1973. e. On 31 July 1975, the applicant's senior commander notified the applicant of his intent to recommend his elimination from the service under the provisions of Army Regulation (AR) 635-100 (Personnel Separation, Officer Personnel) for moral or professional dereliction of duty for, among other allegations, being absent without leave on 21 July 1975. Specifically: * lack of personal supervision after return from a training exercise that resulted in the loss of a PRC 77 radio o/a 6 June 1975 * misrepresented the status of his platoon aircraft on 18 July 1975 by stating that an aircraft 73-22101, was operational when it was in fact deadlined for periodic maintenance * submitted inaccurate status reports on aircraft in his platoon on several occasions which indicates that he was not fully cognizant of the platoon aircraft status * disregarded directions to perform physical training with his platoon * being absent without proper authority, (AWOL) from his unit, 3rd Brigade Aviation Platoon o/a 0730-1630 21 July 1975 * stating to his supervisor that he was present for duty on ~1 July 1975 at 1100 hours when he in fact were not * attempting to have another member of your platoon falsify a flight record, DA Form 2408-12, Record of Time Log to indicate that he had flown on 21 July 1975 when he in fact had not f. The applicant acknowledged receipt of this notification on 1 August 1975. He submitted a statement wherein he requested to be retained in the service. He stated: that he was injured in an automobile accident on or about 30 March 1975 and that his physical condition prevented him to fully participate in training. He also stated that he had no comment on the charge of AWOL and that he categorically denied asking anyone to falsify his records. g. On 11 November 1975, the Commanding General, 101st Airborne Division, notified the applicant of his intent to recommend his elimination from the service. He offered the applicant three options: tender resignation, apply for retirement in lieu of elimination if otherwise eligible for voluntary retirement; continue with elimination action. h. On 20 November 1975, by endorsement, the CG recommended the applicant be eliminated from the Army under the provisions of para 5-12a(4), (6), (9), and (10), of AR 635-100, for moral or professional dereliction of duty. The CG stated the applicant had been offered and has declined to elect an option as outlined in paragraph 5-19b, AR 635-100. i. On 15 December 1975, the applicant was ordered to show cause why he should be retained in the Army. j. On 22 December 1975, the applicant was referred to an Elimination Selection Board for additional evidence from the applicant to be considered. k. On 22 January 1976, the board convened and determined that the applicant show cause for retention. The applicant was given the option to tender his resignation in accordance with chapter 4, AR 635-120 (Officer Resignations and Discharges). l. On 8 March 1976, the applicant elected to submit his resignation. He acknowledged: * if his election was accepted, he may be discharged under other than honorable conditions and furnished an under other than honorable conditions discharge * he may ineligible for many or all benefits administered by the Veterans Administration, and he may be deprived of rights and benefits as a Veteran under both Federal and State laws * he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge m. On 6 May 1976, Headquarters, Department of the Army approved the applicant's resignation in lieu of elimination and the issuance of a General Discharge Certificate. n. On 14 May 1976, he was discharged from active duty. Special Orders Number 93 and his DD Form 214 show he was discharged under honorable conditions characterization of service, under the provisions of AR 635-120, Chapter 4 (Resignation in Lieu of Discharge). He completed 5 years, 8 months, and 17 days of active service with 1 year, 11 months, and 29 days of prior active service. 5. By regulation, an officer who has been recommended for elimination from the service by a general court-martial convening authority or who has been selected by a Department of the Army Selection Board for elimination or to show cause why he/she should not be eliminated pursuant to chapter 5, AR 635-100, may tender a resignation in lieu of elimination action. 6. In reaching its determination, the Board can consider the applicant’s petition and her 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 there is insufficient evidence to grant relief. 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 record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct and resignation. 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 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) 600-8-24 (Officer Transfers and Discharges) provides principles of support, standards of service, policies, task, rules, and steps governing all work required to support officer transfer and discharges. a. Paragraph 1-21a provides that an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty for an officer. b. Paragraph 1-21b provides that an officer will normally receive an under honorable conditions characterization of service when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. AR 635-120 (Officer Resignations and Discharges) in effect at the time provides policies and procedures for separating officers from active duty, and implements the provisions for DoD directive 1332.29. Chapter 4 states that if resignation is accepted under this chapter, officer is not entitled to separation pay unless he has been notified in writing that a selection board has determined that he must show cause for retention and subsequently makes his request. An officer whose resignation is accepted under the provisions of this chapter may be issued an Honorable Discharge Certificate (DD Form 256A), or a General Discharge Certificate (Under Honorable Conditions) (DD Form 257A), or a Discharge Certificate (Under Other Than Honorable Conditions) (DD Form 794A). An Honorable Discharge Certificate (DD Form 256A) will be issued when an officer's discharge is based solely upon substandard performance of duty. 4. 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) AR20170008576 6 1