ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 July 2019 DOCKET NUMBER: AR20170013048 APPLICANT REQUESTS: her deceased husband, a former service member (FSM), be upgraded from an under other than honorable conditions (UOTHC) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * FSM death certificate 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 FSM’s wife states she is requesting an upgrade for Department of Veterans’ Affairs purposes in order for their family to receive benefits. The applicant provides the FSM’s state department of health certificate of death, dated 7 March 2017. FSM was pronounced dead on 2 February 2017. 3. A review of the FSM’s service records shows: a. He enlisted in the Regular Army on 28 August 1972. b. He served at Fort Hood, TX from 16 March to 9 September 1973 and Fort Benning, GA, from 25 March to 20 August 1974. At Fort Benning, he was assigned to Alpha Company, 3rd Battalion, 7th Infantry, 197th Infantry Brigade. c. He accepted non-judicial punishment under the provisions of Article 15 on 18 April 1974 for being absent without leave (AWOL) from 15-16 April 1974. His punishment was forfeiture of $120 for 2 months and 30 days correctional custody. d. He was convicted by a special court martial (SCM) for the following: * AWOL, 16 June to 5 July 1973 and 16 September to 11 October 1973 and on 12 September 1973 was disrespectful to a superior non-commissioned officer, 50 days confinement with hard labor and forfeit $100 for two months * AWOL, 25 April to 10 May 1974, 2 months confinement with hard labor and forfeit $200 for two months e. On 5 June 1974, a mental evaluation was conducted. The examiner stated the applicant had the mental capacity to understand and participate in board proceedings. f. His DD Form 458 (Charge Sheet), dated 11 June 1974, indicates he was charged with being AWOL from 6-10 June 1974 and escaping from custody. g. On 11 and 12 June 1974, his immediate and intermediate commanders recommended him for a trial by SCM with a bad conduct discharge. h. On 18 June 1974, the senior commander recommended him for a trial by SCM martial with a discharge from service. i. He consulted with counsel and was advised of his rights. Following consultation with legal counsel, he voluntarily requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He submitted a statement in his own behalf. He further acknowledged: * he understood that if his discharge request was accepted, he could be discharged under other than honorable conditions with an undesirable discharge certificate * he could be deprived of many or all Army benefits and could be ineligible for many or all benefits administered by the Veterans Administration * he could be deprived of his rights and benefits as a veteran under both Federal and State laws and may encounter substantial prejudice in civilian life j. On 1 July 1974, he submitted a statement on his behalf (detailed statement in packet). k. On 15 July 1974, his immediate and intermediate commanders recommended approval to expeditiously discharge him from service with an undesirable discharge certificate. The senior commander also recommended approval of the discharge with an undesirable discharge certificate. l. The separation authority approved the discharge on 23 July 1974 with the issuance of an undesirable discharge certificate. His pending court-martial charges were dismissed effective the date of his discharge. m. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 21 August 1974, under the provisions of AR 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial with an under other than honorable conditions characterization of service. He completed 1 year, 5 months, and 6 days of active service and he had 200 days of lost time. His DD Form 214 shows he was awarded or authorized: * National Defense Service Medal * Expert Marksmanship Qualification Badge (M-16) 4. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 2 November 1976. On 26 September 1978, the ADRB determined the applicant was properly discharged and denied his request for an upgrade. 5. By regulation (AR 635-200), 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. The issuance of a discharge under the provisions of chapter 10, AR 635-200, would have required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of a trial by court-martial. 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 review of the application and all evidence, the Board determined relief is not warranted. 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. She did not provide character witness statements or evidence of the FSM’s post-service achievements for the Board to consider. Based upon short term of honorable service completed prior to a pattern of misconduct, the Board agreed that the FSM’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. 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 1-13a, states that an honorable discharge is a separation with honor. Issuance of an Honorable Discharge Certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-13b, states that a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. c. Chapter 10 of this regulation provides that 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. An under other than honorable discharge certificate normally is appropriate for a member who is discharged for the good of the service. However, the discharge authority may direct an honorable or general discharge if such are merited by the member’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 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) AR20170013048 4 1