ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 September 2019 DOCKET NUMBER: AR20170014613 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to honorable, or in the alternate to general. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Table of Contents: Petition, Introductory Statement, Argument, and Conclusion * Hand-written statement * Obituary of first wife * Other letters from employer 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, for several reasons set forth in the attached brief, he believes his discharge was in error and unjust as he was not provided with any guidance, mental health therapy, or any assistance whatsoever to deal with severe family issues with his mother and siblings, not having a participating father, and being only 18 years of age. Instead, after being absent for an extended period of time he was summarily discharged. The effects of the 3. He provides a brief wherein he describes his childhood and family, his service in the Army, and personal events that led to his discharge. He attributes his discharge to going on leave and staying home to his family’s financial situation. He did not fully understand the ramifications of his actions. When he returned, he was not given any help or told of the consequences of his decision. He argues that the discharge was in error and unjust because his conduct was not willful or intentional and because he did not receive meaningful counseling. 4. He provides an obituary of his first spouse, a hand-written statement re-stating his service and the reasons he believes his discharge was in error or unjust, and statements from his employer in the 1990s commending him on his professionalism. 5. Review of the applicant’s service records shows: a. He was born in November 19## and enlisted in the Regular Army for 2 years on 5 January 1971, at 18 years and 2 months of age. b. He completed training and was awarded military occupational specialty 11C (Indirect Fire Crewman). He also completed the Basic Airborne Course. Following training, he was assigned to 1st Squadron (Airborne), 17th Cavalry at Fort Bragg, NC, on or about 1 July 1971. c. On 7 September 1971, he was reported absent without leave (AWOL). He returned to military control on 6 October 1971. d. On 29 November 1971, he was again reported AWOL and on 28 December 1971, he was dropped from the rolls as a deserter. He returned to military control on or about 28 November 1972. e. His DD Form 458 (Charge Sheet) is not available for review. Other evidence shows court-martial charges were preferred against him for being AWOL. f. On 5 December 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a discharge under other than honorable conditions, and of the procedures and rights that were 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 indicated: * he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person; he was also advised of the implications that were attached to his request * he acknowledged if his discharge was accepted, he understood he could receive an Undesirable Discharge Certificate * that by requesting discharge he acknowledged he understood that if his discharge request were approved he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the Veterans Administration * 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 g. On 23 January 1973, the separation authority approved the applicant’s request for discharge. He would be reduced to the lowest enlisted grade and issued an Under Other Than Honorable Conditions Discharge Certificate. h. He was discharged from active duty on 23 January 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 with an under other than honorable conditions characterization of service. He completed 11 months and 21 days of active service and he had 393 days of lost time. He was awarded or authorized: * National Defense Service Medal * Parachutist Badge * Expert Badge with M-16 Rifle * Sharpshooter Badge with M-16 Rifle i. On 10 May 1978, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 6. By regulation, discharges under the provision of AR 635-200, chapter 10 (Discharge for the Good of the Service) are voluntary requests for discharge in lieu of trial by court- martial. An under other than honorable conditions discharge was normal. 7. 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, family concerns, and letter of support was 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. Based upon the short term of honorable service completed prior to multiple lengthy periods of AWOL, 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. 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, U.S. Code, 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 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), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. When a Soldier is discharged before ETS for a reason for which an honorable discharge is discretionary, the following considerations apply. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). b. 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. Chapter 10 of that 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 may be submitted after 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 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) AR20170014613 4 1