ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 April 2019 DOCKET NUMBER: AR20170012028 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests, in effect, an upgrade of his discharge under other than honorable conditions (UOTHC). 2. The applicant states there were errors on his previous request to the Army Discharge Review Board (ADRB) concerning his leave dates and his voluntarily turning himself in after being absent without leave (AWOL). He believes he was not mentally stable for active duty due to peer pressure (use of drugs) and family problems. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) and VA Form 21-0958 (Notice of Disagreement). 2. The following evidence from the applicant's service records and Department of the Army and Department of Defense records and systems: * DA Form 4 (Enlistment Contract – Armed Forces of the United States) * DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 27 September 1970 and 6 September 1972 * letter, Bedford County Court, dated 15 August 1972 * memorandum, Detachment 1, Headquarters Company, 1st Battalion, 116th Infantry Regiment, dated 19 January 1971, subject: Unsatisfactory Participation at Ready Reserve Assemblies * Letter Orders D-05-430, Headquarters, 1st U.S. Army, Fort Meade, dated 11 May 1971, with amendments * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service in the Army National Guard of Virginia) * DA Forms 268 (Report of Suspension of Favorable Personnel Actions), dated 14 February 1972 and 13 March 1972 Enclosure 2 * DA Form 188 (Extract Copy of Morning Report), dated 13 March 1972 * DD Form 458 (Charge Sheet), dated 3 August 1972 * Special Orders Number 157, Headquarters, U.S. Army Personnel Control Facility, Fort Belvoir, dated 14 August 1972 * Fort Belvoir Form 34 (Request for Discharge for the Good of the Service under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel)), dated 15 August 1972, with chain of command endorsements, and separation authority approval * DA Form 20 (Enlisted Qualification Record) * DD Forms 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), dated 2 May 1975 and 16 August 1979, with application statements * character-reference letter from applicant's mother, dated 25 August 1980 * character-reference letter from employer, dated 4 September 1980 * character-reference letter from friend, undated * referenced ADRB Case Report and Directives, dated 17 February 1978 and 12 April 1978 * Office of the Secretary of the Army Form 172A (Review of Discharge or Separation), dated 16 September 1975 * letter, ADRB, dated 9 October 1975 * Case Report and Directive, ADRB, dated 26 January 1981 REFERENCES: 1. Title 10, U.S. Code, section 1552(b) provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d stated an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member'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. a. b. Paragraph 1-9e stated a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 1-9f stated an undesirable discharge is an administrative separation from the service under conditions other than honorable. It may be issued for unfitness, misconduct, homosexuality, or security reasons. d. Paragraph 9-13 stated that when an individual is to be discharged from the service with an undesirable discharge, he will be reduced to the lowest enlisted grade. e. Chapter 10 provided that 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, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The request could be submitted at any time after charges were preferred and must have included the individual's admission of guilt. If the member elects to submit a request for discharge for the good of the service after receiving counseling, he will personally sign a written request certifying that he has been counseled, that he understands his rights, that he may receive a discharge UOTHC, and that he understands the adverse nature of such a discharge and the possible consequences. Although an honorable or general discharge was authorized, a Discharge Certificate UOTHC was normally furnished to an individual who was discharged for the good of the service. 3. Army Regulation 135-91 (Policies and Procedures Governing Satisfactory Participation), in effect at the time, defined Army National Guard (ARNG) and U.S. Army Reserve (USAR) service obligations and prescribed policies and procedures governing methods of fulfillment, satisfactory participation, and enforcement. a. Paragraph 4-11 (Unexcused Absence from Unit Training Assemblies) provided that when a member failed to participate satisfactorily when he or she accrues a total of nine or more unexcused absences from scheduled unit training in any 1-year period. A member who fails to participate satisfactorily in this respect will be ordered to active duty for a period, which when added to his prior service on active duty, active duty for training, annual training, or full-time training duty, will total 24 months. a. b. Paragraph 4 (Orientation) provided guidance for unit commanders to assure that each enlisted member was fully aware of and understood his or her obligations, the prerequisites for maintaining satisfactory participation, and the actions which will result from unsatisfactory participation. 4. Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Provisions), currently in effect, defines ARNG of the United States (ARNGUS) and USAR service obligations. It prescribes policies and procedures governing the various types of service obligations and participation requirements. a. Paragraph 4-12 (Conditions of Unexcused Absence) states Soldiers will be charged with unsatisfactory participation when, without proper authority, they accrue a total of nine or more unexcused absences from scheduled inactive duty training in a 12-month period. Soldiers will be processed or separated as prescribed in chapter 6. b. Paragraph 6-2 (Unsatisfactory Participation Enforcement Provisions) states when it has been determined that an ARNGUS or USAR officer or enlisted Soldier is an unsatisfactory participant per chapter 4, the immediate commander will complete a memorandum determining the Soldier an unsatisfactory participant and will initiate proceedings that result in the reassignment, transfer, or separation of the unsatisfactory participant: * if the commander determines the Soldier has potential for useful service under mobilization, the Soldier will be discharged from the ARNGUS and transferred to the Individual Ready Reserves per National Guard Regulation 600-200 (Enlisted Personnel Management), the commander may also consider grade reduction * if the commander determines the Soldier has no potential for useful service under mobilization, the Soldier will be processed for discharge from Reserve of the Army status per Army Regulation 135–178 (Separation of Enlisted Personnel) 5. Army Regulation 135-178, currently in effect, sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of ARNGUS and USAR enlisted Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. * Paragraph 12-3 (Characterization of Service): * - characterization of service normally will be under other than honorable condition, but characterization as general (under honorable conditions) may be warranted if a Soldier's service has been honest and faithful and when significant negative aspects of the Soldier's conduct or performance of duty outweigh positive aspects of the Soldier's military record; - for Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate. In such cases, separation for unsatisfactory participation with an honorable characterization will be approved by the separation authority (paragraph 1-11). As an exception, the separation authority will approve separation with service characterized as honorable when an administrative separation board has recommended such characterization. 6. 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 regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. DISCUSSION: 1. While the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest 1. of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. He enlisted in the Virginia ARNG (VAARNG) on 20 March 1970. 3. He completed his initial active duty training and was released to the control of the VAARNG on 27 September 1970 with his service characterized as honorable. 4. On 8 January 1971, he was charged with two civil felonies for breaking and entering. 5. On 19 January 1971, his unit commander notified him that he exceeded the number of unexcused absences allowed within a 1-year period and requested involuntary order to active duty. The applicant was involuntarily ordered to active duty with a reporting date of 16 June 1971. 6. On 28 July 1971, the applicant was tried by civil court and found guilty of his civil convictions and given a 12-month jail sentence. He served 60 days in jail and the remainder was suspended, conditioned on good behavior. 7. His involuntary order to active duty was amended to show a reporting date of 2 August 1971 and then amended to 27 September 1971. 8. He was issued a general discharge from the VAARNG effective 26 September 1971. 9. His service records show he was AWOL on 27 September 1971 and dropped from the rolls of the Army on 26 October 1971. He record shows he was AWOL for 37 days. 10. He was promoted to private first class/E-3, effective 17 December 1971. 11. His unit reported his duty status changed from ordinary leave to AWOL effective 11 February 1972. He was dropped from the rolls of the Army on 10 March 1971. He returned to military control on 24 July 1972. 12. Court-martial charges were preferred against him on 3 August 1972 for being absent from his unit from on or about 11 February 1972 through on or about 25 July 1972. 1. 13. He consulted with legal counsel on 15 August 1972. He was advised of the basis for the contemplated trial by court-martial which could lead to a bad conduct or dishonorable discharge, the effects of a request for discharge for the good of the service, and the rights available to him. 14. He voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200. In his request for discharge: a. He acknowledged: * he was making the request of his own free will and had not been subjected to coercion whatsoever by any person * he could be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate * he could be deprived of many or all Army benefits * he could be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs) * he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge b. He indicated he did not desire to make a statement in his own behalf to accompany is request for discharge. 15. The Commander, U.S. Army Engineer Center, Fort Belvoir, approved the applicant's request for discharge for the good of the service on 5 September 1972. He directed the issuance of an undesirable discharge and his reduction to the lowest enlisted grade. 16. He was discharged in the rank/grade of private/E-1 on 6 September 1972. He completed 1 year, 9 months, and 16 days of total service. His DD Form 214 shows the separation authority as Army Regulation 635-200, chapter 10, for the good of the service. His service was characterized as under conditions other than honorable. He accrued lost time during the periods 27 September 1971 through 2 November 1971 and 11 February 1972 through 24 July 1972. 17. He applied to the ADRB for an upgrade of his discharge on 2 May 1975 wherein he stated: * he was on leave and then was AWOL due to some family problems * * he was involved with drugs at the time of his AWOL and has since rehabilitated himself * he was not picked up by the local police, but turned himself in to the local police and was placed in confinement in the stockade * since this time he has found it hard to get a job with this type of discharge * he applied for schooling and educational benefits and was disallowed * he feels if he is to be successful in the future, he will have to get his discharge reviewed and changed 18. The ADRB denied his request for a discharge upgrade on 16 September 1975. After careful consideration of his military records and all other available evidence, the ADRB determined he was properly discharged. 19. The applicant again applied to the ADRB for a discharge upgrade on 16 August 1979 wherein he stated: * due to his youth and immaturity, he did not take his Reserve meetings seriously enough * the Kent State deal was hard to accept at that time so he was ordered to active duty * due to drugs and his youth, he went home on authorized leave, but failed to report back * he informed the captain in his unit of his drug problem but received no help * he no longer takes drugs and he is a law-biding citizen 20. He provided additional arguments/contentions with his application wherein he stated: * he would not have requested a discharge had he known the full impact it would have in later years * the reason he requested his discharge was because his lawyer already had the signed papers * he thought he would not have to go through court-martial proceedings and get a prison sentence if he requested a discharge * he had a prior honorable discharge and a general discharge from the ARNG * personal problems impaired his ability to serve – he had a small family problem when he was home on leave * his ability to serve was impaired by his deprived background – his father died when he was 14 years old and his family had a hard time living on social security pension and Veterans Affairs pension * * the punishment he got was too severe compared with today's standards * he feels he would get better than an undesirable discharge if he were in the ARNG today and missed drills * in order to be consistent and fair, the ADRB should grant an honorable or a general discharge in his case because relevant facts of his case are similar to those in case number AD7709130, where the ADRB granted an upgrade (copy attached) * in order to be consistent and fair, the ADRB should grant an honorable/general discharge in his case because relevant facts of his case are similar to those in case number AD7X024210, where the ADRB granted an upgrade (copy attached) 21. He provided a letter from his mother, dated 25 August 1980, wherein she described his family history. She stated his sister got pregnant at the age of 16 while he was in the service. He learned of the pregnancy while he was home on leave and he felt he had to stay home to help his family. She feels her son is a worthy and deserving person whose conduct, while under severe strain may not have been the most desirable, has been good and will be good forever in the future. 22. He provided a letter from an employer, dated 4 September 1980, stating the applicant worked for him for 4 years. He was a good worker, on time, and prompt. 23. He provided letter from a friend who has been his friend since childhood. He stated the applicant had good moral fiber; he was a true, loyal friend and dependable. He has outstanding patriotism and standing in the community. 24. He provided copies of ADRB cases AD77-09130 and AD7X024210A. He stated these cases were similar to his and the ADRB granted discharge upgrades. 25. The ADRB denied his request for a discharge upgrade on 26 January 1981. After careful consideration of his military records and all other available evidence, the ADRB determined he was properly discharged. The board's determination was based upon the overall quality of his service, noting he had two periods of AWOL for a total lost time of 202 days. The ADRB also noted he had been ordered to active duty for missing eight drill sessions while serving as a member of the ARNG. 26. The Board should consider the applicant's statement in determining whether to grant relief on the basis of equity, injustice, or clemency grounds in 1. accordance with the Under Secretary of Defense for Personnel and Readiness guidance. //NOTHING FOLLOWS// ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 April 2019 DOCKET NUMBER: AR20170012028 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. 4/30/2019 X 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. Enclosure 1