ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 May 2019 DOCKET NUMBER: AR20170019678 APPLICANT REQUESTS: an upgrade of his under other than honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Self-authored statement * Requests to appear before the Board 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 was offered an upgrade in the early 1970s that he did not take advantage of it. When he applied for an upgrade in 2015, his records were not available. In closing, he states that his service in Vietnam should warrant the upgrade. 3. Review of the applicant's service records show: a. He enlisted in the Regular Army on 31 May 1967. b. On 6 November 1968, at Fort Bragg, NC, he was convicted by a special court- martial of one specification of being absent without leave (AWOL) from 7 October 1968 to 16 October 1968 SCM Order Number 73. The court sentenced him to be confined at hard labor for three months, forfeiture of $72.00 per month for three months, and reduction to the grade of private/E-1. c. On 6 November 1968, Headquarters, 307th Engineer Battalion, Fort Bragg, took action in the applicant's conviction by approving a lesser sentence of confinement at hard labor for 2 months, hard labor without confinement for 30 days, forfeiture of $72.00 a. per month for 3 months, reduction to private/E-1. The portion that provides for confinement at hard labor was suspended until 4 January 1969. d. On 10 April 1969, at Fort Riley, KS, he was convicted by a special court-martial of four specifications of being AWOL 12 January 1969 - 4 February 1969, 6 February 1969-28 February 1969; 3 March 1969 – 6 March 1969 and 10 November 1971 to 16 November 1971. The court sentenced him to be reduced to the grade of private/E-1, to be confined at hard labor for six months, and to forfeit $73.00 per month for six months. The convening authority approved the sentence on 11 April 1969. e. On 2 December 1971, the applicant's immediate commander recommended separation action against the applicant 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), Section VII, paragraph 45b, for unauthorized absence in excess of one year. f. On 3 December 1971, the applicant was afforded the opportunity to consult with appointed counsel, or military counsel of his own choice, or civilian counsel at this own expense. He declined the opportunity to consult with counsel. He submitted a statement in his own behalf. He acknowledged he: * understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions * understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * understood that he may, up until the date the discharge authority orders, directs or approves his discharge, withdraw his waiver and request that a board of officers hear his case g. On 15 December 1971, the separation authority approved the applicant's discharge for unfitness, under the provisions of AR 635-206, Section VII, para 45b, with his service characterized as undesirable. The applicant was discharged accordingly on 7 January 1972. h. His DD Form 214 shows he was discharged under the provisions of AR 635-206, Section VII, para 45b, for unauthorized absence in excess of one year, and he was issued Separation Program Number (SPN) 282. His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate. He completed 1 year, 9 months, and 5 days of active service, and he had 1024 days of lost time. He was awarded or authorized the Vietnam Service Medal, Vietnam Campaign Medal, National Defense Service Medal, parachutist Badge, and Sharpshooter marksmanship Badge with Rifle Bar (M-14). a. 4. The regulation in effect at the time (By regulation (635-206) provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year. 5. By regulation (AR 15-185), applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that are relief was not warranted. Based upon the multiple lengthy AWOL offenses over extended periods of time and the lack of character evidence submitted by the applicant to show that he has learned and grown from the events which led to the discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 5/13/2019 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 635-206, 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). Members would be considered for discharge when it was determined that one or more of the following applied: (a) when the Soldier was initially convicted by civil authorities, or action taken against the Soldier which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude. An undesirable discharge was normally considered appropriate. 3. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department 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 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 1. 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.