IN THE CASE OF: BOARD DATE: 19 December 2019 DOCKET NUMBER: AR20180004992 APPLICANT REQUESTS: * Upgrade of his undesirable discharge under other than honorable conditions to general under honorable conditions * Permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 he developed a drug abuse problem while on active duty, suggesting this may have contributed to the misconduct that led to his adverse discharge. 3. The applicant's service records show: a. On 1 March 1972, the applicant underwent a physical examination as part of his effort to enlist into the U.S. Air Force. On 2 March 1972, a physician provided a consultation report, which indicated the applicant had used heroin four times in his lifetime, starting at age 17. The physician affirmed, despite this use, the applicant was not addicted; he never had withdrawal symptoms, showed no needle tracks, and was motivated to serve in the military. b. On 9 June 1972, the applicant enlisted into the Regular Army for a 3-year term; he was 18 years old. On completion of basic combat training (BCT) at Fort Dix, NJ, orders transferred him to Fort Jackson, SC in order to complete advanced individual training (AIT) in military occupational specialty (MOS) 71B (Clerk-Typist). On 21 August 1972, his AIT unit reported him as absent without leave. c. The applicant returned to military control on 19 October 1972 and was assigned to the Fort Dix U.S. Army Personnel Control Facility (PCF). He departed the PCF, in an AWOL status, on 10 November, and he remained absent until 14 November 1972. d. On 28 November 1972, consistent with the applicant's pleas, a summary court- martial convicted the applicant of two violations of Article 86 (AWOL), Uniform Code of Military Justice (UCMJ); the respective AWOL periods were: 21 August until 18 October 1972 (59 days) and 10 until 14 November 1972 (4 days). The court sentenced him to forfeit $75 for one month; on 29 November 1972, the summary court-martial convening authority approved the sentence and ordered its execution. e. At some point prior to 4 December 1972, the applicant's PCF commander initiated separation action against the applicant under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). On 4 December 1972, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the separation action; the applicant requested to personally appear, with counsel, before a board of officers to argue his case. f. On 6 December 1972, the PCF again reported the applicant as AWOL. According to a Federal Bureau of Investigation (FBI) letter, dated 11 April 1973, the FBI located the applicant at his part time job on 11 April 1973 and returned him to military control at the Fort Dix PCF. g. On 16 April 1973, the applicant's PCF commander preferred court-martial charges against him for AWOL from 6 December 1972 until 11 April 1973 (126 days). h. On or about 24 April 1973, the applicant's counsel submitted a letter to the separation authority, which stated the applicant's intent to forward a discharge request for the good of the service, and offered matters in extenuation and mitigation. (1) Although the applicant was not legally married, he had fathered two children and was trying to support them; his girlfriend had custody of their children and was living with her parents. The applicant and his girlfriend had planned to continue this arrangement until he was reassigned to a base closer to home, after which they would then get married. This plan was based on promises made by the applicant's recruiter, who had claimed, once the applicant completed BCT, the applicant would be stationed near his home. Since entering the Army, the applicant came to understand how unlikely it was that his recruiter's promises would be realized. (2) Counsel listed additional concerns: the applicant was on orders for Fort Jackson, but never completed AIT; the girlfriend's parents told his girlfriend she could no longer live with them and would have to move out; because she was caring for their two children, ages 3 and 7 months, the girlfriend could not work; and the applicant's girlfriend had threatened suicide and said she would take the children someplace where he would not be able to see them. Counsel addressed the possibility of a custody dispute, but discounted this alternative as not optimal and too costly. (3) The applicant told his counsel, while in AIT, he may have received nonjudicial punishment for something related to a bed check; the applicant claimed to have filed an appeal, but did not know the result. The applicant further stated he could think of nothing else but his family and, had he realized the Army would make things so difficult for his family, he would never have enlisted. The applicant asserted he would never be able to perform conscientiously as a Soldier, due to his personal problems. i. On 24 April 1973, after consulting with counsel, the applicant requested discharge 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 elected not to submit statements in his own behalf. j. On a date between 15 May and 5 June 1973, the separation authority approved the applicant's request and directed the issuance of an Undesirable Discharge Certificate; on 5 June 1973, the applicant was discharged accordingly, under other than honorable conditions. His DD Form 214 showed he completed 5 months, and 6 days of his 3-year enlistment, with 203 days of lost time. He was awarded or authorized the National Defense Service Medal and two marksmanship qualification badges. k. On 5 June 1974, the applicant petitioned the Army Discharge Review Board (ADRB), requesting an upgraded character of service. (1) The applicant stated he had been working hard at his own business, but wanted to further his education using Veterans' benefits. He argued he left Fort Dix in an AWOL status because of the poor living conditions he encountered at the PCF. He claimed he and the other Soldiers were forced to sleep on dirty mattresses without blankets or sheets; there was hardly any heat; and personal belongings were constantly being stolen. Although the applicant had alerted his leadership about the problems, no action was ever taken. He also asserted, in effect, he accepted the advice of his counsel (a Judge Advocate captain) only because he was young and naive; he had no idea how his character of service would affect his future. (2) On 11 July 1974, the ADRB determined the applicant had been properly discharged and denied his request. l. On 8 May 1978, the applicant submitted a second petition to the ADRB, requesting an upgraded character of service and permission to personally appear before the ADRB with counsel. (1) The applicant argued, apart from going AWOL, there were no other charges preferred against him, and he had maintained a good civilian record. He also asserted the Army had violated its contract with him, in that he was promised, but never received, a certain type of training (apparently referring to AIT for MOS 71B). To support his claims, the applicant provided letters of support, a certificate of course completion, and a U.S. Army Recruiting letter affirming the applicant acceptance into Career Group 71 (Administration). (2) On 9 July 1979, the applicant appeared, with counsel, before the ADRB. (a) Through counsel, the applicant contended he was given the impression he would be completing AIT at a military base close to home; he also understood he would be assigned to Korea afterward. (b) He had a common law wife and two children; his wife began to put pressure on him and was threatening suicide. The only money coming into the household was what he earned as a Soldier, so he went AWOL to find jobs that would allow him to support his family. (c) As of the time of the hearing, the applicant was employed by a bank. His now-former spouse had moved away and remarried; he no longer provided support for his children. He was asking the ADRB for an upgrade so he could further his education; having access to Veterans' benefits was why he joined the Army in the first place. He acknowledged he had experimented with drugs prior to entering military service and his last period of AWOL ended when he was apprehended. (3) The ADRB voted to deny the applicant's request after finding no improprieties in his separation proceedings. 4. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 5. The applicant essentially acknowledges his misconduct, and, in effect, attributes his periods of AWOL to his abuse of drugs (which he claims began while he was on active duty). a. Per the Manual for Courts-Martial that was in effect at the time, the maximum punishment for AWOL in excess of 30 days included a punitive discharge; Soldiers charged with UCMJ violations, for which a punitive discharge was a punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and offered in-lieu of trial by court-martial. b. In reaching its determination, the Board should also consider the statements and evidence the applicant provided in conjunction with his military service record in accordance with the published equity, injustice, or clemency determination guidance. 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 request, the length of his service, the frequency and nature of his misconduct, his stated reasons for his absences, the reason for his separation and whether to apply clemency. The Board also considered his statement and supporting references put before the ADRB, but found insufficient evidence of in-service mitigating factors to overcome his misconduct. The Board found he provided no additional 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. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. 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 :XXX :XXX :XX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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 punitive discharge. 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 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. 5. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180004992 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180004992 7 ABCMR Record of Proceedings (cont) AR20180004992 6