IN THE CASE OF: BOARD DATE: 19 December 2019 DOCKET NUMBER: AR20180006722 APPLICANT REQUESTS: * Upgrade of his under other than honorable conditions discharge * Permission to personally appear before the Board (but only if he is not required to travel) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * National Personnel Records Center (NPRC) letter * DD Form 214 (Report of Separation from Active Duty) * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * DD Form 4 (Enlistment Contract – Armed Forces of the United States) * DD Form 794A (Under Other than Honorable Conditions Discharge Certificate) * Applicant's discharge orders * DA Form 20 (Enlisted Qualification Record) * DA Form 2-1 (Personnel Qualification Record – Part II) 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, in effect, he was a member of the Wisconsin Army National Guard (WIARNG) from 1973 until 1977; the WIARNG considered him absent without leave (AWOL) because of circumstances beyond his control; specifically, he could not afford a telephone and was unable to attend drills due to winter road conditions. He offered additional details in a self-authored statement: a. He enlisted into the WIARNG on 6 June 1973 and completed both basic combat and advanced individual trainings. In 1975, he was given a job opportunity in a town about 90 miles from his WIARNG unit; he requested a transfer to the WIARNG unit closest to the new location, but his commander repeatedly denied his request. b. During the winter of 1975, as he was driving to weekend drill, he slid off an icy road. He ended up being 4 hours late and got into trouble for that. During that same year, his unit deployed to a location in Wisconsin; his unit was sent to this location in response to a group's takeover of a building there. Because he had no access to a telephone, he did not know his unit had deployed. Eventually a local sheriff notified him, and he immediately left by car to join his unit; on his arrival, his leadership put him on indefinite clean-up and KP (kitchen police). c. In 1976, his WIARNG commander called an unscheduled 2-hour meeting; because he lived 90 miles away, the applicant claims he never learned of this spur-of- the-moment drill; as a result, his chain of command reported him as AWOL. All this was taking place in a time before cell phones, and the only means of communication were telephone and regular mail. d. He ended up in an Army prison at Fort Lewis, WA and was ultimately discharged. He wanted the Army to know, during the period he served in the WIARNG, he was living alone with no family. He struggled to maintain a residence and a car; there were times he had to live out of his car. He is now over 62 years of age, lives a humble life, and works to support himself, as he has done his whole life. In addition, he respects the law, his fellow man, and all things in nature; he always looks for the good in people and tries not to be judgmental. He acknowledges he has made wrong decisions, but never intentionally hurt anyone. He is telling all of this to the Board so its members can understand a little about who he is and why he got an "UNDER DISHONORABLE CONDITIONS" discharge; he is hoping the Board will grant his request for an upgrade to something other than what he currently has. 3. The applicant provides a letter from NPRC and documents from his official military personnel file. 4. The applicant's service records show: a. On 6 June 1973, the applicant enlisted into the WIARNG for 6 years. His service record provides evidence he entered active duty to complete initial entry training (IET), serving from 18 October 1973 through 23 February 1974, and he was awarded military occupational specialty (MOS) 13A (Field Artillery Basic). b. On 5 October 1974, the applicant accepted nonjudicial punishment under Section 301, Wisconsin Code of Military Justice (WCMJ) for being AWOL from a scheduled training assembly; as recorded on a DMA Form 2627-1 (Record of Proceedings under Section 301, WCMJ), the applicant claimed to have overslept, and the commander noted this was the applicant's second AWOL within the previous 2 months. c. Effective 20 June 1975, the applicant's chain of command promoted him to private first class (PFC)/E-3. d. On a DD Form 44 (Record of Military Status of Registrant), dated 7 February 1976, the applicant's WIARNG commander reported the applicant had failed to perform satisfactorily and was being ordered to active duty. Also on 7 February 1977, the applicant's unit sent the applicant a letter, via certified mail, advising him he had failed to participate satisfactorily in unit training assemblies and would be ordered to active duty. e. Unit orders, dated 7 February 1976, administratively reduced the applicant from PFC to private (PV2)/E-2, effective 7 February 1976. f. On 2 March 1976, the WIARNG TAG (The Adjutant General) sent the applicant a letter, informing him he was being ordered to active duty; the applicant was given 15 days from receipt of the letter to file an appeal. g. On 12 May 1976, Fifth U.S. Army issued Letter Orders showing, effective 24 June 1976, the applicant was ordered to active duty for a term of 18 months and 24 days; he was to report to the U.S. Army Reception Station at Fort Knox, KY. On 27 May 1976, the WIARNG prepared an affidavit affirming the WIARNG Chief Enlisted Personnel Branch had mailed the Fifth Army Letter Orders to the applicant on 27 May 1976, using certified mail. h. Effective 23 June 1976, the applicant was separated from the WIARNG with a general discharge under honorable conditions; his NGB Form 22 reflected the award of two marksmanship qualification badges. i. On 24 June 1976, the U.S. Army Reception Station at Fort Knox reported the applicant as AWOL and dropped him from Army rolls, effective 23 July 1976. j. On 10 March 1977, the U.S. Army Personnel Control Facility (PCF), Fort Ord, CA, reported the applicant had surrendered to civilian authorities and returned to military control at Fort Lewis, WA. A Federal Bureau of Investigation (FBI) letter, dated 11 March 1977, indicated the applicant had been employed at a truck stop in Montana and was subsequently placed in a county jail; on 10 March 1977, the FBI had advised the Fort Lewis Deserter Apprehension Desk of the applicant's status. k. On 24 March 1977, the applicant's PCF commander preferred court-martial charges against him for AWOL from 24 June 1976 until 10 March 1977 (259 days); the applicant's unauthorized absence violated Article 86 (AWOL), Uniform Code of Military Justice (UCMJ). l. On 30 March 1977, 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 acknowledged he was guilty of the charge and submitted a statement in his own behalf: (1) The applicant stated he had entered the service because it sounded like a good thing to do at the time; he went AWOL because he just could not get used to the military way of living. (2) He stated his feelings toward the military were very poor, and he wanted out because he would be able to be a better and (more) complete person in society. If he were sent back to serve on active duty, he would simply leave again. He understood his discharge would mean the loss of benefits and would result in an under other than honorable conditions character of service. m. On 7 April 1977, the separation authority approved the applicant's request and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate; in addition, he ordered the applicant reduction to private/E-1. On 15 April 1977, the applicant was discharged accordingly. His DD Form 214 showed he completed 1 month, and 2 days of his 18 months and 24 days term of active duty service, and had 259 days of lost time. He was not awarded or authorized any awards. 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. 6. The applicant essentially contends he was AWOL due to circumstances beyond his control. He wanted the Board to know he struggled financially while in the WIARNG, could not afford a telephone, lived about 90 miles from his WIARNG unit, and, despite his efforts, was unable to transfer to a closer WIARNG unit. He is now over 62 years of age; lives a humble life; respects the law and his fellow man, and always looks for the good in people. While he acknowledges he made bad decisions, he asserts he never intentionally hurt anyone. 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 record and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his length and record of service, the frequency and nature of his misconduct, his ordering to active duty, his absence and surrender to authorities, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigation 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. 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: 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. 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 1-9d (Honorable Discharge) stated an honorable discharge was a separation with honor. Issuance of an honorable discharge was conditioned upon proper military behavior and proficient duty performance. A Soldier's service was to be characterized as honorable based on conduct ratings of at least "Good"; efficiency ratings of at least "Fair"; no general court-martial, and no more than one special court- martial conviction. b. 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. c. 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) AR20180006722 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180006722 8 ABCMR Record of Proceedings (cont) AR20180006722 6