ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 July 2019 DOCKET NUMBER: AR20170015883 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions 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 he is looking to see if anything can be changed to receive medical benefits as he never requested any changes before. Now, he would like to know if anything can be done to receive some medical benefits at his advanced age. He had never tried to get it changed over the last 43 years, but would like to see if any medical services are available. 3. A review of the applicant’s service records shows: a. On 16 August 1967, he was inducted into the Army of the United States. b. On 13 January 1968, he was assigned to Germany. c. On 29 April 1969, he was convicted by a special court-martial order of one specification of being absent without leave (AWOL) from 24 March 1968 to 13 March 1969. The court sentenced him to confinement at hard labor for 4 months and to forfeit $73.00 pay per month for 4 months. The sentence is approved on 12 May 1969. d. On 19 December 1972, court-martial charges were preferred against him. His DD Form 458 (Charge Sheet), indicates he was charged with one specification of being AWOL from 14 April 1971 to 18 December 1972. e. On 10 January 1973, the applicant was notified by his immediate commander’s intent to separate him under the provisions of Army Regulation (AR) 635-206 (Personnel Separations – Discharge Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion) for lengthy AWOL. f. On 12 January 1973, he was advised by his consulting counsel of the basis for the contemplated action to separate him for lengthy AWOL under the provisions of AR 635-206, paragraph 45, its effect, of the rights available to him, and the effect of any action taken by him in waiving his rights. He waived consideration of his case by a board of officers and personal appearance before a board of officers. He acknowledged: * he had been afforded the opportunity to consult counsel * that he was being considered for service characterization under other than honorable conditions * understood that he could expect to encounter substantial prejudice in civilian life if a discharge under other than honorable conditions was issued to him * understood that as the result of issuance of a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life g. On 12 January 1973, the commander formally initiated separation under AR 635-206, paragraph 45, for lengthy AWOL and the subsequent chain of command recommended approval. h. On 23 January 1973, the separation authority approved separation under AR 635-206, paragraph 45 with the issuance of an under other than honorable conditions discharge and ordered the applicant be furnished an Undesirable Discharge Certificate. He was reduced to the lowest enlisted grade of private/E-1. i. On 14 February 1973, the applicant was discharged from active duty. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged for lengthy AWOL under the provisions of AR 635-206, paragraph 45, with under other than honorable conditions characterization of service. It shows he completed 1 year, 4 months, and 22 days of active service with 1,494 lost days. It also show he was awarded or authorized Army Service Ribbon and the Sharpshooter Marksmanship Qualification Badge with the Rifle Bar (M-14). 4. On 18 April 1979, the Army Discharge Review Board (ADRB), after careful consideration of his military records and all other available evidence, has determined that he was properly discharged. Accordingly, the ADRB denied his request for a change in the type and nature of his discharge. 5. By regulation, an individual will be considered for discharge when it is determined by an administrative review of all facts that there is substantial evidence to support a determination of desertion or absence without leave. The term "substantial evidence" means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The term should not be confused with the rule of evidence which requires that the guilt of the accused be established beyond a reasonable doubt to justify a criminal conviction of desertion or absence without leave. The unauthorized absence has continued for more than 1 year. Retention in the service is precluded by regulations or is not considered desirable or in the best interests of the Army. 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. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the relatively short term of honorable service completed prior to multiple lengthy AWOL offenses, as well as the failure to accept responsibility and show remorse for the events leading to his separation, 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, 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) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a states 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 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. 3. Army Regulation 635-206 (Personnel Separations – Discharge Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence without Leave or Desertion)), in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). Paragraph 45 of the regulation provided that an individual will be considered for discharge when it is determined by an administrative review of all facts that there is substantial evidence to support a determination of desertion or absence without leave. (The term "substantial evidence" means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The term should not be confused with the rule of evidence which requires that the guilt of the accused be established beyond a reasonable doubt to justify a criminal conviction of desertion or absence without leave). The unauthorized absence has continued for more than 1 year. Retention in the service is precluded by regulations or is not considered desirable or in the best interests of the United States. Trial by court-martial on a charge of desertion or leave without absent (AWOL) is waived or deemed inadvisable by the general court-martial convening authority; or such trial has resulted in (1) Disapproval of the findings or sentence by the convening authority, or upon further review by higher authority, based upon a technical or evidentiary error which does not go to the innocence or guilt of the member; (2) The accused successfully pleading the statute of limitations, 10 U.S.C. 843, Article 43 Uniform Code of Military Justice (UCMJ). 4. 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) AR20170015883 4 1