ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 June 2019 DOCKET NUMBER: AR20170010779 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge to a general discharge. 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 would like an upgrade of his under than honorable discharge to a general discharge. He believes the record to be in error because he did not receive pay from June 1972 through August 1972. Payroll said he was overpaid in June 1972. He states that the Board should be interested because it is not fair he has been trying to get pay records, but no one has them or they will not release them to him. 3. A review of the applicant’s record show the following: a. He enlisted in the Regular Army on 7 April 1972. b. His DA Form 20 (Enlisted Qualification Record) shows that he was absent without leave on 29 September 1972, dropped from rolls on 29 October 1972, and returned to duty on 16 April 1973. c. Court-martial charges were preferred on 19 April 1973. His DD Form 458 (Charge Sheet) indicates that he was charged with one specification of absent without leave (AWOL) from 29 September 1972 to 16 April 1973. d. On 20 April 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 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 e. On 20 April 1973, the applicant wrote a letter that states that after he joined the Army he found out that his girlfriend was 3 months pregnant. When he got into basic training, he sought help from the chain of command and they told him they would only give him a weekend. He thought he would get leave between basic and advanced individual training. He asked the commander of Fort Belvoir on 16 June 1972 to request leave to go home to get married but was told no. He waited until the end of the phase 1 of classes and finally received annual leave. He married his girlfriend and they had a daughter. For three months he was paid once and was overpaid $150 so he knew that he would not get all of his money the next month. He received a letter from his wife that said if he did not come home she would divorce him because she was having nothing but problems. She said the Army did not need him half as much as she did. So he told her would stay home for a while to help out. He went to a recruiter to see if he could get his leave extended and was told he would have to get his commander’s approval. He could not afford to return to duty and then return home so he just took the leave. His daughter had a medical emergency and was in the hospital for 2 days. In his letter, he listed the bills that had accumulated and requested to be discharged from the Army. f. On 25 April 1973, THE Staff Judge Advocate (SJA) reviewed his request for discharge for the Good of the Service. The SJA noted family problems with his spouse and financial obligations. The SJA recommended an undesirable discharge and noted the applicant AWOL status from 29 September 1972 to 16 April 1973. g. On 25 April 1973, the applicant’s intermediate commander recommended discharge for the good of the service with an undesirable discharge certificate. h. On 8 May 1973, the separation authority approved separation under the provisions of AR 635-200, chapter 10, Separation Program Number (SPN) 246 (discharge for the good of the service) with the issuance of DD form 258A, Undesirable Discharge Certificate with reduction to the lowest enlisted grade. i. Orders 53, dated 14 May 1973, show that the applicant was reduced in rank to private/E-1 with an effective date of 8 May 1973. j. He was discharged on 14 May 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, SPN 246 (Discharge for good of the service). His DD Form 214 shows he completed 6 months and 19 days of active service and a 199 lost days. His character of service is under other than honorable conditions. 4. By regulation, AR 635-200 , an individual who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 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 him, 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. 5. 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 for consideration of discharge upgrade requests, the Board found the relief was not warranted. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the short term of service completed prior to the lengthy AWOL offense, the reason for his separation and whether clemency should be applied. The Board found insufficient in-service mitigation for his misconduct and the applicant provided no character references or evidence of post-service achievements in support of a clemency determination. Based on a preponderance of evidence, the Board concluded that the characterization of service received at the time of discharge was appropriate and not in error or unjust. 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: As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 6/28/2019 X CHAIRPERSON 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. 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. 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 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