ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 June 2019 DOCKET NUMBER: AR20170009194 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored Statement * National Personnel Record Center (NPRC) Letter 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: a. During basic training, he missed breakfast due to running errand for the Drill Sergeant to the First Sergeant prior to a 15 mile road march. He informed the Drill Sergeant in charge of the march, he took him to the dining facility and they prepared for him what they had left over. He told the Drill Sergeant that this is not enough to sustain for the road march and then asked to see the commander. He then requested to do the road march with another platoon during the week if there was one available. The commander granted his request and assigned him to mess duty for that day and the march two days later. b. While in Bayreuth, Germany things turned for the worse. He experienced drinking for the first time, offered drugs by the local nationals but declined and later he fell for the bait from his buddies that it wouldn’t’ hurt him so he brought some pills and continued drinking. The next thing he knew he woke up in jail. He reported to his company, once he was released to give his side of the story. He told the truth that he got the pills from the local nationals. He was not charged with any wrong doing, but was put on extra duty. The next day there was a surprised inspection, many Soldiers a. were busted and the commander might as well signed his death warrant, he was beaten up and cut with a knife by several Soldiers. His commander realized that his life was in peril, so he sent him to the observation post on the communist border, but that was all in vain. c. He was given an under other than honorable conditions discharge and he is asking to have it changed to a general discharge under honorable conditions because he was young, mentally and emotionally in mature to be in the military. He never ventured from home and he thought he could handle it. He had family issues that he couldn’t deal with while in the service. He had no criminal record before or after his discharge other than traffic violations. 3. The applicant provides: a. The NPRC response letter date, 28 February 2017, to the applicant responded to his request for a copy of his official military personnel file and medical record. b. His personnel service records from 26 October 1972 to 9 September 1974. c. His dental and medical records from 26 October 1972 to 19 August 1974. 4. A review of the applicant’s service record shows: a. He was enlisted in the Regular Army on 26 October 1972. b. His DA Form 20 (Enlisted Qualification Record) shows he was AWOL from 14 May 1974 and dropped from the rolls (DFR) as a deserter on 11 June 1974. He returned to military control and assigned to the personnel control facility, Fort Hood, TX on 15 August 1974. c. He received nonjudicial punishment: * 1 June 1973, for willfully suffer military clothing, property of the United States (US) Government, destroyed by burning, his punishment in part consisted of reduction to E-1, suspended for 30 days * 5 September 1973, failed to go to the appointed place of duty * 22 February 1974, for AWOL from 14 October 1973 to 5 January 1974 d. The DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence), shows he was apprehended by the civil authorities on 15 January 1974 and returned to military control at Fort Polk, LA for being AWOL since 14 October 1973 to 14 November 1973. e. His record contains another DA Form3836, which shows he was apprehended a. by the civil authorities on 15 August 1974 and returned to military control at Fort Polk, LA, for being AWOL since 14 May 1974 and dropped from rolls on 11 June 1974. f. The two morning reports shows the applicant was from AWOL 14 May 1974 to 16 July 1974. g. His DD for 458 (Charge Sheet), dated 19 August 1974 shows that court martial charges were preferred against the applicant for one specification of being AWOL from 14 May 1974 to 13 August 1974. h. The applicant consulted with legal counsel on 20 August 1974 and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service. He submitted a statement on his own behalf and he acknowledged: * the maximum punishment * he was guilty of the charge against him or of a lesser included offense which authorized a punitive discharge * he did not desire further rehabilitation or a desire to perform further military service * if his discharge was approved, he may be discharged under conditions other than honorable and the effects of the discharge * he would be deprived of many or all Army benefits and that he may be ineligible for many or all benefits administered by the Veterans Administration and benefits as a veteran under both Federal and State laws i. His statement on his own behalf stated in part that he did not return to Germany after his leave expired because certain persons had threatened to kill him unless he joined their group. He did not want to join the group since their activities included such things as drug abuse. The applicant had a pay problem which he has never been able to correct even though he sought the help of his chain of command. He had been an E-2 for eighteen months, but received the pay of an E-1. Considering his age, his lack of education, and his record of no convictions, it is requested that the applicant receive an appropriate discharge. j. The applicant underwent a mental evaluation on 21 August 1974 and medical examination for separation and the examiner stated the he was qualified for separation. k. On 3 September 1974, consistent with the chain of command recommendations, the general court martial convening authority approved the applicant’s request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service and directed he be issued an undesirable discharge certificate and reduction to E-1. a. l. On 18 March 1975 a commander’s inquiry was conducted into the probable causes or motives for the AWOL of the applicant AWOL since 14 May 1974. The applicant’s records showed that he had failed to pay debts and there was no other evidence that may have been sufficient cause for the unauthorized absence. m. The next of kin was notified by letter on 18 March 1975 and informed that the applicant had been absent without authority since 11 June 1974. He was asked if he knew of his whereabouts they urged him to encourage the applicant to return to his command immediately. n. On 9 September 1974, he was discharged from active duty under the provisions of AR 635-200, chapter 10, in-lieu of court martial, SPD KFS, for the good of the service, in lieu of court martial, his characterization of service is under other than honorable conditions. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 month, 4 months and 27 days of active service, and he had 174 days of lost time. o. The applicant applied to the Army Discharge Review Board and on 12 June 1981, the Board denied his request, stating that the Board after careful consideration of his military record and all other available evidence, determined that he was properly discharged. 5. Soldiers separated under AR 635-200, paragraph 10, in lieu of trial by court martial are assigned the Separation Code KFS in accordance with AR 635-5-1 (Personnel Separations – Separation Program Designators). 6. The RE Code associated with this separation is RE-3B which applies to persons who have lost time during their last period of service; ineligible for enlistment unless a waiver is granted in accordance with AR 601-210, (Regular Army and Reserve Enlistment Program) paragraph 3-8. 7. 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. 8. By regulation, discharges under the provisions of chapter 10 of 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. 9. 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. 1. 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 short term of service prior to a pattern of misconduct, 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. 6/25/2019 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. AR 635-200, 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. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). 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 discharged because of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record 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 1. 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//