ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 28 August 2019 DOCKET NUMBER: AR20180005959 APPLICANT REQUESTS: an upgrade of his under other than honorable condition discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored letter 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, in effect: a. His discharge should be upgraded to honorable status per his discharge paperwork agreement, which was for him to complete 2 years of community service and receive an upgrade to an honorable discharge. If he did complete the community service, he was to report to Fort Ord, California, where he was drafted, which is listed on his DD Form 214 (Report of Separation form Active Duty). b. He reported to Fresno community hospital within the 30-day required timeframe. He worked in the evenings for two years as agreed and his duties included maintenance, pushing patients and whatever the hospital needed. During the day, he worked his regular job, and in the evenings, he worked at the hospital per his agreement. Fresno community hospital would sign a form every 30 days, which he mailed to the Captain as part of the agreement during his two years. He completed his required time, but his record was never corrected. 3. The applicant provides a detailed self-authored statement which states: a. He was court marshaled and that should have never happen. It was over his leave papers. He was drafted on 4/11/1968. He went to basic training at Fort Lewis, WA, then he was sent overseas to Vietnam to drive trucks for the troops for two years. His new duty station was Fort Org, CA. He was there for the rest of his enlistment and he was approved for leave in 1973. He received leave papers for 30 days approved from his previous Captain and he was picked Lip 9 days later at his home of record, by the FBI for being AWOL. b. He was returned to Fort Org, Ca to the brig for thirty days and then special court marshaled by his new Captain. He was un-represented in the court and the charges for forged leave papers was not true. He was properly signed out by an orderly of his company upon leaving the base, which his Captain would not look at his papers nor did he look at the sign out log. He received an additional 90 days in the brig for leave papers that he had in my hand! At that point, he was disgusted in the way he was treated and wanted out of the Army. c. He was then sent to Fort Org, Ca to finish his tour and process out. He began to stew about how he was wrongly treated and did walk of the base at that time. He regret this today, although he was young and felt betrayed. He did return on his own and received the above mentioned agreement. He honorably served his country for six plus years and he did what his discharge papers required him to do. Therefore, he deserve the honorable discharge upgrade, as promised. 4. A review of the applicant’s service record shows: a. He was inducted into the Army of the United States on 11 April 1968. b. On 17 October 1968, the applicant was convicted by a special court-martial order #2762 of one specification of being absent without leave on or about 5 August 1968 until on or about 1 October 1968. He was to be confined at the Post Stockade and the confinement will be served therein, or elsewhere, as competent authority may direct. c. On 3 March 1975, the applicant requested for discharge for the good of the service pursuant to the provisions of Presidential Proclamation No 4313, 16 September 1974. He understood that his absence was characterized as a willful and persistent unauthorized absence for which is subject to court-martial for violation of the Uniform Code of Military Justice and could lead to the imposition of a bad conduct or dishonorable discharge. He acknowledged: * he would be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate * he would deprived of all service benefits and ineligible for all benefits administered by the Veteran’s Administration * he may be deprived of his rights and benefits as a veteran under both Federal and State Law * he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge * he would have 15 days from date of receipt of discharge to report to his State Director of Selective Service to arrange for performance of alternate service * he must satisfactorily complete such alternate service will be acknowledged by issuance of a Clemency Discharge Certificate * that such certificate will not alter his ineligibility for any benefits predicated upon his military service d. On 3 March 1975, he was discharged from active duty. His DD 214 shows he completed 5 months and 3 days of net active service. He has lost time of 577 days of service prior to his expiration term of service and 1783 days after his normal expiration of term of service. e. The applicant declined a separate document explaining the narrative reason for his separation from the United States Army. A narrative description of the authority for his separation, and the reenlistment code. f. On 12 January 1976, the Selective Service System terminated the applicant’s enrollment in the Reconciliation Service Program for not completing the required period of alternate service. 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 6. By regulation, discharges under the provision of AR 635-200, Chapter 10 (Discharge for the Good of the Service) are voluntary requests for discharge in lieu of trial by court- martial. 7. The Board should 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 relief was not warranted. Based upon the short term of honorable service completed prior to multiple lengthy AWOL offenses, the Board concluded that the characterization of service received at the time of separation 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. 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 Regulations 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. When a Soldier is discharged before ETS for a reason for which an honorable discharge is discretionary, the following considerations apply. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). b. 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. c. Chapter 10 of that regulation provides that a Soldier who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. 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 character. ABCMR Record of Proceedings (cont) AR20180005959 4 1