ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 July 2019 DOCKET NUMBER: AR20170013530 APPLICANT REQUESTS: reconsideration of his previous request to upgrade his under other than honorable discharge to a general discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored Statement * 3 Character Letters of Support * Congressional Privacy Act Form * Email correspondence from Representative X___ to HQDA * Congressional Liaison (Army Review Boards Agency) Response Letter FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110008352 on 25 April 2011. 2. The applicant states he requests an upgrade of his dishonorable discharge to a general discharge. 3. The applicant provides: a. A detailed self-authored statement which is attached describing the incident and his military and personal experiences. He states in August 1973, he had finished at CTF Fort Riley, KS and was allowed to go on leave for 14 days at home in Brunswick, GA to visit his wife and family. Upon arriving home, he found that his wife had another child by another man. Because he had not been home in over a year, when he was allowed to go on a compassionate leave in 1972. He was devastated, but the worst part of it, the same day he got home, she told him "You'll get over it." He had to walk away; he did not understand. He was angry but he did not care. He went AWOL (absent without leave) for 5 months. He turned himself in at Glynco Naval Air Station in Brunswick, GA. He arrived at Fort Gordon and awaiting his sentencing. He had a lawyer assigned to him, but he coerced him into signing for the chapter 10. He was told if he did not sign the chapter 10, he would have had to go before the judge and could receive a bad conduct discharge. b. Character reference letter from X___ states the applicant is a blessing to others and a kind friend. He would do anything asked of him, janitorial duties, stocking the food pantry and keeper of the grounds. He possess a very kind and humble spirit and encourages others that were having a hard time in life. In 2008, he became employed at The Salvation Army and they became friends and he has also encourage X___. c. Character reference from X___ states he has known the applicant for 2 years and can speak to his current life. He states knowing they have military experience in common drew them together as friends. He owns a coffee shop and the applicant always comes in to visit and talk. He has great values and character as a personal friend and represents his service well. He is extremely friendly and active in the Ocala area. He knows no stranger and shares his story with everyone. He would give the shirt off his back in order to help someone else. d. Character reference from X___ states he has known the applicant for about 20 Years and he has worked in some their tenants’ restaurants. He has had a lot of medical problems with his stomach but has managed to work part time. He has good people skills and excellent penmanship and readily helps others. e. Congressional correspondence, dated 25 April 2019, wherein the applicant signed a Congressional Privacy Act form requesting Congressional assistance from Congressman X___. On 2 May 2019, email correspondence from Representative X___ to the Pentagon (Army) requesting review of the applicant’s situation. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 25 June 1971. b. He accepted nonjudicial punishment under Article 15 on/ for: * 12 August 1971, failing to go at the time prescribed to his appointed place of duty * 5 October 1971, being absent without leave (AWOL) form 26 September 1971 to 30 September 1971 * 19 October 1971, being AWOL from 17 October 1971 to 18 October 1971 * 7 February 1972, being AWOL from 9 January 1972 to 10 January 1972 * 4 May 1972, being AWOL from 21 April 1972 to 27 April 1972 c. On 24 November 1971, he was convicted by a summary court-martial of one specification of being AWOL from 29 October 1971 to 10 November 1971. The court sentenced him to forfeit $62, reduction to private/E-1, hard labor without confinement for 15 days, and restriction for forty (40) days. The convening authority approved the sentence on 24 November 1971. d. On 24 November 1972, he was convicted by a special court-martial of one specification of being AWOL from 3 October 1972 to 30 October 1972. The court sentenced him to reduction to private/E-1, hard labor without confinement for 90 days, restriction for 30 days, and forfeit $25 pay per month for 3 months. The sentence was approved on 4 December 1972. e. On 21 March 1973, court-martial charges were preferred against him. According to his DD Form 458 (Charge Sheet), he was charged with one specification of failure to go at appointed place of duty on 7 January 1973, one specification of failure to go at appointed place of duty on 11 January 1973, one specification of AWOL from 5 March 1973 to 21 March 1973, and one specification of breaking restriction on 15 December 1972. f. On 29 March 1973, an additional charges memorandum referenced the applicant's two previous convictions (summary court-martial for AWOL and a special court-martial for AWOL). An additional charge of AWOL from 23 March 1973 to 28 March 1973 was added. g. On 6 April 1973, additional court-martial charges were preferred against the applicant. His DD Form 458 show she was charged with one specification of theft of a 13 inch television set, a turn-table, two speakers, one headset, two extension cords and three long playing albums. h. On 10 April 1973, the applicant consulted with legal counsel 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 in lieu of trial by court-martial. In his request for discharge, he indicated: * he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person * he acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA) * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected not to submit a statement on his own behalf i. His commander recommended his request for discharge for the good of the service be disapproved and stated due to the seriousness of his offenses and the previous charges pending against him recommended he be tried by a special court-martial empowered to adjudge a bad conduct discharge. j. On 16 April 1973, the separation authority disapproved the applicant's request for voluntary discharge in lieu of trial by court-martial under chapter 10, AR 635-200, and referred the applicant to the court-martial for the charges preferred against him. k. On 17 May 1973, he was convicted by a special court-martial of: * two specifications of without authority, failing to go at the time prescribed to his appointed place of duty on 7 January 1973 and 11 January 1973 * one specification of AWOL from 5 March 1973 to 21 March 1973 * one specification of breaking restriction on 15 December 1972 * one additional specification of failing to go at the time prescribed to his appointed place of duty * one additional specification of wrongful appreciation (instead of larceny) of a television set, a turn-table, two speakers, one headset, two extension cords and three long playing albums l. The court sentenced him to confinement at hard labor for 6 months and to forfeit $100 pay per month for 6 months. On 25 May 1973, the convening authority approved the sentence and ordered it executed. m. On 3 July 1973, the unexecuted portion of the approved sentence for forfeiture of $100 pay per month for six months, was suspended until 16 November 1973, at which time, unless sooner vacated, the suspended portion of the sentence will be remitted without further action. n. On 14 March 1974, new court martial charges were preferred against the applicant for AWOL from 20 August 1973 to 28 February 1974. o. On 15 March 1974, following his consult with counsel, the applicant again requested discharge for the good of the service under the provisions of chapter 10, AR 635-200. In his request for discharge he indicated: * he was making this request of his own free will and had not been subject to any coercion whatsoever by any person * by submitting this request for discharge, he understood the elements of the offense charged and he is guilty of the charge against him * as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, and he may be ineligible for many or all benefits administered by the VA, and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law * he understood that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge p. On 20 March 1974, the commander recommended approval of the applicants request for discharge and issuance of a DD Form 258a (Undesirable Discharge Certificate). q. On 26 March 1974, the separation authority approved the applicant's request for discharge and ordered his service be characterized as under other than honorable conditions and he be issued an Undesirable Discharge Certificate, and reduced to the lowest enlisted grade of E-1 (if applicable). r. The applicant was discharged on 8 May 1974. His DD 214 confirms he was discharged under the provisions of AR 635-200, chapter 10 – for the good of the service with a character of service as under other than honorable conditions and he was issued an Undesirable Discharge Certificate. He completed 1 year, 10 months, and 19 days of active service with 355 days of lost time. s. On 4 June 1975, he submitted an application requesting his undesirable discharge be changed to a medical or general under honorable discharge. On 3 March 1976 the Board determined that insufficient evidence was presented to indicate probable material error or injustice, and the application was denied. 5. 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, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. 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 and letters of support 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. One member concluded a long time has passed since the misconduct and recommend clemency by upgrade the characterization of service to Under Honorable Conditions (General). However, based upon the short term of honorable service completed prior to multiple periods of AWOL and conduct criminal in nature, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the majority of 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 : X : GRANT FULL RELIEF : : : 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 to amend the decision of the ABCMR set forth in Docket Number AR20110008352 on 25 April 2011. 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) provides that 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) provides that 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 by reason of misconduct, unfitness, unsuitability, homosexuality or security, the specific basis for such separation, will be included in the individuals military personnel record. c. Chapter 10 of that regulation provides, in pertinent part, 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, 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 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. 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) AR20170013530 6 1