ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 July 2019 DOCKET NUMBER: AR20180006700 APPLICANT REQUESTS: an upgrade of his under conditions other than honorable discharge to honorable or general APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * VA Form 21-4138 (Statement in Support of Claim) * DD Form 214 ((Armed Forces of the United States Report of Transfer or Discharge) * self-authored statement * letter of support 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 is requesting an upgrade based on today’s regulations and his current and past behavior. He has learned his lessons well and has been a model citizen and has tried to be an honorable person and give back to his family. He has served as a deputy sheriff for 19 years and this is the only blemish on his record. 3. The applicant provides: a. A self-authored statement which states he joined the Army two months after his 17thbirthday. At his first duty station everything was fine, but his next assignment he started to have problems. He went on leave and on his way back from leave he was waiting for the bus, but the building caught on fire and he got back the next morning. He was late for roll call and started being harassed for being late. He decided the best way to avoid any more trouble was to reenlist and find another duty station. b. Furthermore, he was having problems with his girlfriend and was drinking heavily. He was afforded 30 days of leave and received a reenlistment bonus and drank the entire time he was on leave. After drinking for 30 days, he showed up late for training at Fort Belvoir, Virginia and was then court-martialed for being late. He later went absent without leave (AWOL). He knows there is no good reason for his actions, but things just kept getting worse and he was young and scared. After being discharged, he got married and raised 4 daughters and has maintained the same job for 35 years and recently retired at the age of 62. c. A letter of support from JR, which states he has known the applicant for several years. He is a good citizen and a role model to his wife and children. He believes he should be given a second chance and have his discharge upgraded. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 25 February 1968. b. On 19 June 1969, he was convicted by Special Court-Martial Order Number 62 for being AWOL from 15 May 1969 through 4 June 1969. His punishment consisted of reduction to Private/E-1, forfeiture of $70 per month for 4 months, and to be confined at hard labor for 4 months. c. On 24 June 1969, the confinement portion of his sentence was suspended because his record showed promise of him being a better Soldier. The condition of the suspension was he would not become involved in any disciplinary problems. d. On 29 July 1969, he accepted non-judicial punishment for being AWOL from 22 July 1969 to 28 July 1969. e. He was also AWOL from 1 September 1969 to 22 September 1969. f. On 8 October 1969, the suspended sentence for 4 months hard labor was duly executed. g. On 16 October 1969, he escaped pre-trial confinement from the stockade at Fort Belvoir, Virginia. He remained AWOL until 9 March 1970. h. On 16 March 1970, after consulting with counsel he requested a discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service in lieu of trial by court-martial. He understood: * the rights available to him * if approved he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate * he may be deprived of many or all Army benefits, * he may be ineligible for many or all benefits administered by the Veterans’ 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 i. The complete facts and circumstances surrounding his discharge are not available to the Board for review with this case. However, his DD Form 214 shows he was discharged on 25 March 1970 under the provisions of AR 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial. He was issued a discharge certificate of under conditions other than honorable. It also shows he completed 1 year, 7 months and 13 days of net service with 170 days of lost time. 5. On 28 July 1977, the Army Discharge Review Board (ADRB) reviewed the applicant’s discharge processing, but found it proper and equitable. The ADRB denied his request for an upgrade. 6. By regulation, a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. 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 that relief was not warranted. Based upon the relatively short term of honorable service completed prior to a pattern of misconduct which included escaping from confinement, as well as multiple AWOL offenses, 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. 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) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states 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 member’s current enlistment or current period of service with due consideration for the member’s age, length of service, grade and general aptitude. b. Paragraph 1-9e (General Discharge) is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security. c. Paragraph 1-9f (Undesirable Discharge) states an undesirable discharge is an administrative separation from the Service under conditions other than honorable. It may be issued for unfitness, misconduct, homosexuality, or for security reasons. d. Chapter 10 of this regulation states an individual 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. 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 (BCMNRs) 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 court-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. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. ABCMR Record of Proceedings (cont) AR20180006700 4 1