ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 8 October 2019 DOCKET NUMBER: AR20160016631 APPLICANT REQUESTS: The applicant requests his discharge under other than honorable conditions (UOTHC) be upgraded to a discharge under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * National Personnel Records Center (NPRC) Letter * NPRC Service Request All Detail * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for period ending 21 August 1973 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 not AWOL (absent without leave). He had authorization for emergency leave due to a family emergency. His father was in trouble and had no assistance. He does not wish to have monetary benefits; he just want his discharge upgraded. 3. On 15 February 1973, at the age of 17 years old, the applicant enlisted in the Regular Army for a term of 3 years. He completed his basic combat training and after 1 month and 29 days of arriving at advanced individual training, he went AWOL. 4. On 3 July 1973, court-martial charges were preferred against the applicant for two specifications of being AWOL from on or about: * 15 May 1973 and remained absent until 10 June 1973; AWOL for 26 days * 19 June 1973 and remained absent until 27 June 1973; AWOL for 8 days 5. On 16 July 1973, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635- 200 (Personnel Separations-Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provisions of AR 635-200, chapter 10. He elected not to submit statements on his own behalf. 6. The applicant’s immediate commander recommended approval of his request, the case was legally reviewed by the Staff Judge Advocate, and the appropriate separation authority approved the applicant’s request directing the applicant be reduced to the lowest grade, and be issued an Undesirable Discharge Certificate. 7. On 21 August 1973, he was discharged accordingly, his service was characterized as UOTHC. He completed 5 months and 2 days of total active service. His DD Form 214 shows: * He was awarded or authorized: * M-16 Rifle Marksman Marksmanship Qualification Badge * Hand Grenade First Class Marksmanship Qualification Badge * 34 days lost under Title 10 U.S. Code, section 973, due to AWOL 8. The applicant provides the NPRC Letter with Service Request All Detail. The NPRC letter states that the organization does not have the authority to review and approve amendments or corrections to military records and that his DD Form 149 was being forwarded to the Army Review Boards Agency. The Service Request provided details of what services were requested by the applicant and the status of the action. 9. The applicant states he was not AWOL. He had authorization for emergency leave due to a family emergency. His record shows the applicant enlisted in the Regular Army at the age of 17 years old and went AWOL on two occasions resulting in 34 days of lost time. He served 5 months and 2 days of his 3 years contractual obligation. 10. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 11. The Manual for Courts-Martial provides the maximum punishment for AWOL for more than 3 days but not more than 30 days does not include a bad conduct or dishonorable discharge. Although his record shows he accumulated a total of 34 days of AWOL over two periods; he did not have more than 30 consecutive AWOL days in either period. 12. AR 635-200 states a Chapter 10, discharge for the good of the service, is a voluntary discharge request in-lieu of trial by court martial. A member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. Paragraph 5-3, secretarial authority, states a discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. 13. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record and length of service, the frequency and nature of his misconduct and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. The Board concurs with the correction stated in the Administrative Note(s) below. 2. 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, except for the correction stated in the Administrative Note(s) below, 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): 1. A review of the applicant’s records shows he is authorized the National Defense Service Medal, which is not listed on his DD Form 214. 2. As a result, amend the DD Form 214 with an effective date of 21 August 1973 by adding the National Defense Service Medal. 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), in effect at the time, set forth the basic authority for the separation of enlisted personnel. It provided: a. A Chapter 10 (Discharge for the Good of the Service) is applicable to a member who has committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred and must have included the individual’s admission of guilt. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. A member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. b. Paragraph 5-3 (Secretarial Authority ) states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders. c. 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 Soldier's current enlistment of current period of service with due consideration for the Soldier's age, length of service, grade, and general aptitude. d. 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. 3. Manual for Courts-Martial United States is the official manual for court-martial process. It provides the maximum punishment for offenses under the Uniform Code of Military Justice. The maximum punishments for offenses for AWOL for more than 3 days but not more than 30 days was confinement with hard labor for 6 months and forfeiture for 6 months. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. a. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. b. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160016631 6 1