BOARD DATE: 3 December 2019 DOCKET NUMBER: AR20170017502 APPLICANT REQUESTS: His undesirable discharge [referred to by the applicant as a bad conduct discharge] be upgraded and that he be afforded a personal appearance before a traveling review panel. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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 ABCMR does not conduct traveling boards. Although the applicant requested a personal appearance before the Board, there is no statutory or regulatory right to a formal hearing. Formal hearings are granted only when it is determined that a case is so complex, or the records so incomplete that only sworn testimony can provide the necessary information. 3. The applicant states he was a victim of racial prejudice from his commanding officer. He received good conduct marks prior to getting a new commander; however, after his new commander arrived, his troubles began and he was charged with disrespect for not saluting his commander from over 50 feet away. 4. The applicant enlisted in the Regular Army on 7 August 1974. 5. Before a summary court?martial on or about 14 January 1975, the applicant was found guilty of being absent without leave (AWOL) from on or about 4 November through on or about 31 December 1974. 6. The applicant received nonjudicial punishment (NJP) on 5 December 1975, under Article 15 of the Uniform Code of Military Justice (UCMJ), for failure to go to his appointed place of duty on two occasions and failure to obey a lawful order from a warrant officer. 7. The applicant's available enlisted evaluations, with the exception of his 8 October 1975 evaluation, show he received average to very low ratings. 8. The applicant's DA Form 2?1 (Personnel Qualification Record ? Part II shows he was reported by his unit as AWOL, from on or about 19 December through on or about 28 December 1975. 9. Court-martial charges were preferred against the applicant for violations of UCMJ; however, the relevant DD Form 458 (Charge Sheet) is not available for review. 10. The applicant's discharge processing documents are not available for review. However, the evidence of record shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service in lieu of trial by court-martial. 11. The applicant was discharged on 30 March 1976. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial, and his service characterization was UOTHC. His DD Form 214 further shows he was discharged in the rank/grade of private/E-1 with 69 days of lost time and no awards or decorations. 12. The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no information that would indicate the contrary. Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service. 13. The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition 14. The applicant has not provided and the record does not contain any evidence of racial prejudice surrounding his discharge. 15. The Board should consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, and the character and reason for his separation. The Board noted the facts presented above. 2. The Board noted that he absented himself from duty without authority (AWOL) from 9 December through on or about 28 December 1975. The Board that he voluntarily requested discharge under the provision of Chapter 10, for the good of the service – in lieu of trial by court-martial, for which he was given a legal counsel to advise and represent him and he was given an opportunity to present evidence in his defense in which could have raised the issue of his contention that he was a victim of racial prejudice. The applicant acknowledged his understanding that by requesting discharge, that he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge, and that he could receive a discharge under other than honorable conditions. 3. While the applicant contends that he was a victim of racial prejudice, he has not provided any evidence to support his contention. In accordance with regulation, the applicant has the burden of proving an error or injustice by a preponderance of the evidence. 4. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was no post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 5. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. It provides: a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’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. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. At the time of the applicant's discharge an Undesirable Discharge Certificate was provide. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. b. 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) AR20170017502 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20170017502 6 ABCMR Record of Proceedings (cont) AR20170017502 4