ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS I BOARD DATE: 24 June 2019 DOCKET NUMBER: AR20170008988 APPLICANT REQUESTS: an upgrade of his under other than honorable 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 he felt he should have been granted leave as his wife was pregnant and she lost the baby and needed him. He needed to be with her as this was the death of their child. The Board should find it in the interest of justice to consider the application to allow him to obtain veteran benefits. 3. The applicant provides a copy of an authorization form for congressional inquiry, dated 27 April 2017. Congressional letter from the office of Senator Jo_n Bo_n writing on behalf of the applicant requesting a response from the Board. A letter from the Army Review Board Agency (ARBA) address to the office of Senator Jo_n Bo_n acknowledging receipt of his request. A copy of a certificate of fetal death of the applicant’s child. A letter addressed to the Board from the ex-spouse of the applicant that states she was married to the applicant and became pregnant and had various complications throughout her pregnancy. She further states that the applicant put in several requests for leave to his commanding officer and all of them were denied and that she had to move back home to be with her family so she could get the care that she needed for herself and their unborn child. She states that the applicant could not get the time off to take care of her needs. She went into labor on 16 December 1973 and the applicant was notified and he made the decision to leave Fort Hood to be with her during her time of need. His choice to go absent without leave (AWOL) was made as a man and husband and not that of a Soldier and unfortunately their daughter was still born. If the applicant had been granted leave as requested he would not have went AWOL for his family. Copies of character references are provided by the applicant from individuals who have attested to the positive character of the applicant. 4. A review of the applicant’s service record show the following: a. He enlisted in the Regular Army (RA) on 8 July 1971. b. He accepted nonjudicial punishment on 19 October 1972 for being AWOL from 10 October 1972 to 16 October 1972. c. Court-martial chargers were preferred on 9 July 1973. His DD Form 458 (Charge Sheet) indicates that he was charged with one specification of AWOL from 5 June 1973 to 7 July 1973. d. On 10 July 1973, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and the procedures and rights available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court- martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request for discharge, he acknowledged: * he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person * he understood by requesting a discharge he/she was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * he acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits * he acknowledged he could be ineligible for many or all benefits administered by the VA (Department of Veterans Affairs) and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he stated that under no circumstances did he desire further rehabilitation or to perform further military service * he elected to submit a statement on his own behalf e. On 20 July 1973, his immediate commander recommended approval and issuance of an Undesirable Discharge Certificate (DD Form 258a). f. On 23 July 1974, his intermediate commander recommended disapproval of the applicant’s request for discharge. He further stated that it appears that an attempt should be made to rehabilitate the applicant. g. On 8 August 1973, the separation authority disapproved the applicant’s request for discharge under the provisions of chapter 10, AR 635-200. h. Special Court-Martial order 97, dated 23 August 1973, indicates that the applicant was charged with and found guilty of once specification of being AWOL from 5 June 1973 to 7 July 1973. His sentence included reduction to private/E-2. i. On 1 and 2 November 1973, his immediate and intermediate commanders recommended him for trial by special court-martial with the power to adjudge a bad conduct discharge. j. Court-martial chargers were preferred on 3 November 1973. His DD Form 458 indicates that he was charged with two specifications of AWOL from 17 September 1973 to 18 October 1973 and from 18 October 1973 to 31 October 1973. k. On 7 November 1973, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and the procedures and rights available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of AR 635-200, chapter 10. In his request for discharge, he acknowledged: * he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person * he understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * he acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits * he acknowledged he could be ineligible for many or all benefits administered by the VA and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he stated that under no circumstances did he desire further rehabilitation or to perform further military service * he elected to submit a statement on his own behalf m. On 7 November 1973, he submitted a statement wherein he stated that he joined the Army to help his disabled parents and sent them money. He had had no civilian convictions and completed the 9th grade. He stated that he wants out of the Army because his parents are sick and he has siblings to take care of and a spouse who is ill. n. On 9 and 26 November 1973, his immediate and intermediate commanders recommended approval of discharge with the issuance of an undesirable discharge. o. On 29 November 1973, the separation authority approved separation under the provisions of AR 635-200, chapter 10, with the issuance of DD Form 258a (Undesirable Discharge Certificate). p. He was discharged on 3 December 1973. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of chapter 10 of AR 635-200 SPD (Separation Program Designator) 246 (Discharge for the good of the service) with an under other than honorable conditions discharge. He was awarded or authorized the National Defense Service Medal and Sharpshooter-Marksmanship Qualification Badge with rifle bar (M16). 5. By regulation, AR 635-200, chapter 10 of this regulation states a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (revised edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court- martial to which the charges may be referred. 6. 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 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. One potential outcome discussed was to grant an upgrade to an Under Honorable Conditions (General) discharge based upon the mitigating letters and the supporting documents to corroborate the death of the applicant’s child. However, based upon the amount of AWOL in the record, as well as, in the Board’s opinion, insufficient mitigating reasons to justify the amount of time spent in an AWOL status, the Board concluded that the characterization of service received at the time of separation was appropriate. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. c. Chapter 10 of this regulation states a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. 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. ABCMR Record of Proceedings (cont) AR20170008988 2 1