IN THE CASE OF: BOARD DATE: 28 January 2020 DOCKET NUMBER: AR20180006684 APPLICANT REQUESTS: The applicant requests an upgrade of his under conditions other than honorable discharge to general, under honorable conditions. 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) * Report of Investigation - Line of Duty and Misconduct States * Three character reference letters * Certificate of Outstanding Service 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: a. He is requesting an upgrade from other than honorable to general. He went home on pass and he was having family problems. His infant daughter was sick and he just could not leave her until he knew she was going to be okay. He went back and completed basic training and advanced individual training. He went home on leave and while he was there he was stabbed and he could not go back. He was taken to Carolina Memorial Hospital in Charlotte, NC, where he was stabilized and was then medically evacuated to Fort Bragg, NC. b. His unit was aware of his situation and whereabouts so he was not absent without leave (AWOL). At that time he assumed that everything was okay. He stayed at Med Hold at Fort Bragg until he received his discharge. He also states that he joined the Army with every intension of making it a career. 3. On 22 January 1973, the applicant was 19 years old and enlisted in the Regular Army for a period of 4 years. On 29 January 1973, he was assigned to Company A, 10th Battalion, 2nd Brigade, Fort Jackson, SC for basic combat training. 4. On 19 February 1973, he received non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being AWOL from on or about 8 to 18 February 1973. He did not appeal. 5. His Enlisted Qualification Record shows: * 6 April 1973, he was attending 11B (Light Weapons Infantryman) advanced individual training at Fort Jackson, South Carolina * 1 June 1973, he was in a casual status enroute to Fort Hood, TX * 16 June to 26 August 1973, the applicant was AWOL again * 27 August 1973, he was assigned to the Personnel Control Facility at Fort Bragg, NC 6. On 6 September 1973, a medical examination and a Report of Mental Status Evaluation cleared the applicant for chapter 10 administrative separation proceedings. 7. On 15 October 1973, an Extract Copy of Morning Report shows the applicant departed AWOL from the Personnel Control Facility at Fort Bragg, NC. 8. On 16 October 1973, the Chief, Assignment Control Division indicated there was no record of location for the applicant at that office, and only found his mother’s address. 9. On 23 October 1973, a Line of Duty Determination was approved and found the applicant’s stabbing incident that occurred on 16 August 1973 was determined to be in line of duty. He was stabbed while stopping an assault and suffered multiple open wounds. The line of duty clerk at Womack Army Hospital reported that the applicant was in an AWOL status at the time of the incident. 10. The applicant’s record does not contain a discharge packet; however, a DD Form 214 from his official military personnel file shows on 26 October 1973, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for the good of the service under conditions other than honorable. He was issued a DD Form 258A (Undesirable Discharge Certificate). He completed 6 months and 2 days of net active service and had 93 days of lost time. He was issued the separation program number (SPN) 246 and was not awarded a personal decoration. 11. In support of his case, the applicant provided three character reference letters that state, in pertinent part: * the applicant serves on the Security Team and also in the Hospitality Ministry at the Church * the applicant has demonstrated on many occasions his ability to be a team player and follow through on tasks that were assigned to him; the Deacon is most impressed by his character of dedication, honesty, and integrity * nobody ever has anything bad to say about the applicant; everyone who talks to him sees what a good person he is * the applicant has been a member of Faith Memorial Baptist Church since December 2014; the Senior Pastor also stated the applicant is a dedicated, committed member of the fellowship and is a man of impeccable character 12. Army Regulation (AR) 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). The regulation states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. 13. AR 635-200 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. Although an honorable or general discharge is authorized, an under other than honorable conditions discharge is normally considered appropriate. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’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. 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. 14. AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. SPD Codes were previously called SPN codes. The SPN code of 246 (and now the SPD code KFS) is the appropriate code to assign to Soldiers separated under the provisions of AR 635-200, chapter 10, in-lieu of trial by court-martial. 15. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, and the character and reason for his separation. The Board noted the facts presented above. 2. The Board found sufficient evidence to justify a clemency determination to change his discharge from under other than honorable to general under honorable conditions. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he was discharged with a character of service as general under honorable conditions and issuing him a new DD Form 214 to that effect. 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 (AR) 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). The regulation states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. AR 635-200 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. Although an honorable or general discharge is authorized, an under other than honorable conditions discharge is normally considered appropriate. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’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. 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. 4. AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. SPD Codes were previously called SPN codes. The SPN code of 246 (and now the SPD code KFS) is the appropriate code to assign to Soldiers separated under the provisions of AR 635-200, chapter 10, in-lieu of trial by court-martial. 5. 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. a. 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. b. 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) AR20180006684 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180006684 7 ABCMR Record of Proceedings (cont) AR20180006684 5