ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 July 2019 DOCKET NUMBER: AR20170016262 APPLICANT REQUESTS: to upgrade his under other than honorable conditions discharge to a general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Self-Authored Statement * Veterans Assistance Center Enclosure Listing * Instruction Sheet - DOD Discharge Review Program * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * DD Form 258A (Undesirable Discharge Certificate) * Pictures of Awards * Special Orders Number 235 Extract * DD Form 491 (Summarized Record of Trial (and Accompanying Papers)) * Summarized Record of Trial (Proper) 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 requesting a discharge review under the DoD Discharge Review Program's "possible personal problems which may have contributed to the acts which led to the discharge" and submits evidence of "record of good citizenship since discharge" as outlined in a July 1977 instruction sheet from the DoD. It should be noted that he is not requesting Veterans' Benefits of any type to be restored, as he has neither the need nor a requirement for such benefits. 1. a. During his period of service the Soldiers' and Sailors' Civil Relief Act (SSCR), now called the Servicemembers Civil Relief Act, was in effect. This Act protects active service members from civil proceedings by way of repossession of property, bankruptcy, foreclosure or other such actions. Prior to being drafted, he operated a custom farming and trucking business that, as a course of its operation, required bank loans for equipment. b. In late February 1966, one month after his induction, the bank officers started foreclosure proceedings in spite of being informed of the Act and his status in the military. At his request, his commander allowed him to see what was then called the Staff Judge Adjutant Office at Fort Knox, KY. A lawyer with that office interviewed him, investigated the facts and determined, after two weeks, he had rights under the Act that were being violated by the bank officers. His request to intervene was denied by his commanding officer, who stated, "It was a civil matter." c. Within a few days after the above, he requested a leave of absence through his squad leader to travel home and exert his rights under the Act. That request was denied stating, "It was a civil matter and the training brigade had no time for such matters." It was shortly after, on or about 7 March 1966, that he did leave without permission and took steps to protect his interests at home. It should be noted that had the above officers recognized his rights under the SSCR Act and did their duty to intervene and protect those rights the absence without leave (AWOL) might well have never occurred. d. At a subsequent special court-martial, on 8 September 1966, he stated the reason he went AWOL was for his business interests. That was the place and time he should have demanded his rights under the act. However, in those days personal rights were not a "hot button" issue. In addition, all those present, mostly lawyers, did not recognize and protect his rights on that day. Afterwards, he felt little or no obligation to complete his tour of duty as required and agreed to the current discharge he now holds. In the decades since 26 November 1969, he has formed and operated N.A.T. Transportation, Inc. During this time he has received awards, certificates, and recognition. 3. The applicant provides: a. An Instruction Sheet from the DoD Discharge Review Program (Special), dated 10 June 1977. Item 4 states “consideration of other factors may lead to an upgrade” such as (item 4d) “possible personal problems which may have contributed to the acts which led to discharge.” Also to be considered are (item 4h) “record of good citizenship since discharge. (Boards have been encouraged to give weight to this factor when a good record is shown.)” a. b. Eight pictures of various awards, certificates, and recognitions dating from December 1985 to March 2010. The inclusion of the various awards, certificates, and recognitions are intended to show how he has maintained “good citizenship” as reference in paragraph 3a above. c. Summarized Record of Trial (Proper) that shows on page 6, in a sworn statement by the applicant, he was “in business for himself” when he was drafted into the Army. He needed to get rid of some of his assets to pay taxes. He went AWOL after not getting any results from his squad leader regarding a leave of absence. 4. A review of the applicant’s service record shows: a. On 25 January 1966, he was inducted into the Army of the United States. b. DA Form 20 (Enlisted Qualification Record) shows he did not complete basic combat training as a result of being dropped from rolls. c. On 26 February 1966, he accepted nonjudicial punishment for one specification of disrespectful language towards his squad leader. His punishment included extra duty for 14 days. d. On 8 September 1966, he was tried by special court-martial for two specifications of AWOL from 7 March 1966 to 9 May 1966 and 14 May 1966 to 1 August 1966. His sentence included confinement at hard labor for four months and forfeiture of $60 pay per month for four months. On 23 September 1966 the sentence was approved and ordered duly executed, but the execution of that portion thereof adjudging confinement at hard labor was suspended for four months. e. On 10 December 1966, he was again tried by special court-martial for one specification of AWOL from 16 October 1966 to 14 November 1966. His sentence included confinement at hard labor for six months and to forfeit $64 pay per month for six months. On 19 January 1967, the sentence was approved and ordered duly executed, but the execution of that portion thereof adjudging confinement at hard labor was suspended for six months. f. On 10 November 1969, court-martial charges were preferred against the applicant for one specification of AWOL from 5 January 1967 to 31 October 1969. g. On 11 November 1969, after consulting with legal counsel, he subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). He acknowledged: * maximum punishment * he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate * * as a result of the issuance of such discharge, he shall be deprived of many or all Army benefits * he may be ineligible for many or all benefits administered by the Veteran’s Administration * he may be deprive of his rights and benefits as a veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge h. On 26 November 1969, consistent with the chain of command recommendation, the separation authority approved the discharge recommendation. He would be discharged under the provisions of AR 635-200, chapter 10, with an undesirable discharge, and reduced to the lowest enlisted grade. i. On 26 November 1969, he was discharged from active duty under the provisions of AR 635-200, chapter 10, and issued a under other than honorable conditions discharge. His DD Form 214 reflects that the completed 1 year of active service and he had 1,034 days of lost time from 5 January 1967 to 3 November 1969. It also shows that he was awarded or was authorized the National Defense Service Medal. j. On 27 September 1977, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 5. By regulation, an individual 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. 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 for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board considered the applicant's statement, his short term of honorable service completed prior to a pattern of misconduct, which included multiple lengthy periods of AWOL, the reason for his separation and whether to apply clemency. The applicant did not provide character witness statements or evidence of post-service achievements for the Board to consider in making a clemency determination. Based on a preponderance of evidence, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct and not in error or unjust. 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. 8/22/2019 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. 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 (AR) 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 Discharge) states 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 Discharge) states 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. c. Chapter 10 (Discharge for the Good of the Service) states an individual 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. An undesirable discharge certificate will normally be furnished an individual who is discharged for the good of the service. 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 the 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, 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 upgrade service characterization. 1. //NOTHING FOLLOWS//