ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 2 April 2019 DOCKET NUMBER: AR20170018858 APPLICANT REQUESTS: upgrade of his under other than honorable conditions character of service to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) * Applicant's MyChart Account Details * National Personnel Records Center letter * Photocopy of letter, driver license, social security card, and case manager identification card * applicant's birth certificate FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 applicant states an Army lawyer told him his discharge could be changed after 6 months (apparently implying, in effect, the Army would automatically upgrade his character of service). He has never filed for benefits. 3. The applicant's service records show: a. He enlisted into the Regular Army on 26 November 1973. On 10 December 1973, he arrived at Fort Polk, LA for basic combat training (BCT); he departed his BCT unit in an absent without leave status on 12 December 1973. On 11 January 1973, his BCT unit dropped him from Army rolls. b. On 6 March 1975, a civil court convicted him of marijuana possession and sentenced him to 15 days in jail. On 11 March 1975, he returned to military control and, on 20 March 1975, he transferred to the U.S. Army Personnel Control Facility (PCF) at Fort Gordon, GA. c. On 21 March 1975, his PCF commander preferred court-martial charges against him for AWOL from 12 December 1973 until 10 March 1975 (a total of 454 days). Also on that date, and after consulting with counsel, the applicant requested discharge for the good of the service, in-lieu of trial by court-martial, under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request, he affirmed no one subjected him to coercion and counsel had advised him of the implications of his request. He submitted the following in a voluntariness statement: * he had voluntarily requested discharge under chapter 10 because he was unable to adjust to military life; his nerves could not handle it * he did not feel he could be re-trained and he did not care about the type of discharge he could receive, he just wanted out of the Army * he waived the 72-hour waiting period and wanted to submit his chapter 10 request immediately d. On 9 April 1975, the separation authority approved the applicant's request and directed the issuance of an Undesirable Discharge Certificate. The applicant was discharged accordingly on 8 May 1975. His DD Form 214 shows no awards or decorations. 4. The applicant states, in effect, his Army lawyer told him he could change his character of service 6 months after discharge. Regulations in effect at the time for the Army Discharge Review Board (ADRB) and ABCMR required applicants to file an application to have their discharges reviewed; the regulations did not restrict how soon after separation an applicant could apply. In addition, the Army has never had an automatic upgrade policy for character of service. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. 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. The applicant went AWOL after one day of Active duty. He voluntarily requested separation in lieu of court-martial, and there is no evidence he was told he would receive an automatic upgrade. Based upon the record, 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-9e (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. b. Chapter 10 permitted a Soldier to request discharge for the good of the service when they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial, United States 1969 (Revised Edition), included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Once approved, an undesirable discharge was normally furnished, but the discharge authority could direct either an honorable or general discharge, if warranted. 3. The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments showed Article 86 (AWOL for more than 30 days), UCMJ, included a dishonorable discharge. 4. AR 15-180 (ADRB), in effect at the time, stated applicants had to sign and submit a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States) for a review of discharge. No applications submitted after 15 years from date of discharge were accepted. 5. 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 on the basis of 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) AR20170018858 2 1