ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 August 2019 DOCKET NUMBER: AR20170019096 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) * A personal note 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 reenlisted in June 1966 for military schooling but never received the schooling. He believes that not receiving the schooling was a breach of his reenlistment contract by the Army. He also requests the Board consider his honorable time served before and up to September 1968. On an additional note; he pointed out that since being discharged he has lived life as a model citizen with no police records and not even a traffic ticket. His hope is for a favorable outcome for this request. Finally he expressed regret for the mistakes he made while on active duty and thanks the board for it time and consideration. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 7 April 1965. b. He served in Germany from 3 September 1965 to 2 June 1967. c. He accepted nonjudicial punishment under Article 15 on/for: * 25 April 1966, committing a felony of monies upon a German National * 7 May 1967, absent without proper authority for approximately 42 hours, from 16 May 1967 to 17 May 1967. d. He was discharged on 1 June 1966 for immediate reenlistment. He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that showed his character of service as honorable. e. He reenlisted on 2 June 1966. He was contracted for a military occupational specialty (MOS) producing school. His reenlistment contract stated "I understand that a firm school allocation must be confirmed at a later date and I may have to choose an alternate course subject to availability or changes in my qualifying grade or MOS prior to confirmation of the course." f. He accepted nonjudicial punishment under Article 15 on 30 April 1968, for failing to be at his place of duty on 27 April 1968 g. On 10 March 1969, he was convicted by special court martial of two specifications of being absent without leave (AWOL) from 5 September to 22 November 1968 and from 1 to 24 January 1969. The court sentenced him to be confined at hard labor for six months, to forfeit $97.00 per month for six months, and to be reduced to private/E1. Only so much of the sentence as provides for confinement at hard labor for four months and reduction to the grade of private/E1 was approved and duly executed. h. On 13 March 1970, court martial charges were preferred against the applicant. His DD Form 458 (Charge Sheet), indicates he was charged with being AWOL from 15 November 1969 to 8 March 1970. An additional charge of AWOL was added on 29 September 1970 for AWOL from 20 March1970 to 24 September 1970. i. On 19 October 1970, he consulted with legal counsel and 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 his understanding of the following: * maximum punishment * he is guilty of the charge against him or of a lesser included offense * he did not desire further rehabilitation * he understood that if his request for discharge was accepted he could be discharged under other than honorable conditions * he understood that if his request for discharge is accepted, he may be discharged under conditions other than honorable and furnished an Under Other than Honorable Discharge Certificate and he could be deprived of many or all Army benefits administrated by the Veterans Administration and his rights and benefits of a Veteran under both Federal and State laws * he may elect to submit a statement on his own behalf- he elected not to submit a statement * he may expect to encounter substantial prejudice in civilian life because of an other than honorable conditions discharge * he understands that there is no automatic upgrading nor review by any government agency of a less than honorable discharge and that he may apply to the Army Discharge Review Board or the Army Board for Correction of Military Records j. He elected to submit a statement in his own behalf. He stated that he felt that he should be discharged for the good of the Army. He was needed more back home where his parents could benefit. His parents were seniors and had to care for his adult sister who was mentally retarded. He was the only other means of support for his parents and sibling. He had shown determination to be free from the military by his duty performance and misconduct. He would continue to leave without authority until he was finally free of the army or die trying. Finally he asked, for the benefit of his family, himself and the service to send him home. k. On 20 November 1970, consistent with the chain of command recommendation, the separation authority approved the applicant’s discharge request for the good of the service. He would be discharged with an Undesirable Discharge Certificate and reduced to the lowest enlisted grade. l. On 4 December 1970, he was discharged from active duty. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provision of AR 635-200 chapter 10 (Discharge for the Good of the Service) with a under other than honorable conditions discharge. He completed 3 year, 9 months, and 4 days of active service with 317 days lost time. It also shows he was awarded or authorized the National Defense Service Medal. m. On 6 November 1979, 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. 4. By regulation, AR 635-200, Chapter 10 provides, in pertinent part, 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. 5. 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 lengthy periods of AWOL, as well as a lack of demonstrated acceptance of responsibility 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. Chapter 10 of that regulation provides, in pertinent part, 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. a. Paragraph 1-7e (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 or current period of service. b. Paragraph 1-7d (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 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) AR20170019096 4 1