ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20180007841 APPLICANT REQUESTS: consideration for an upgrade per the current discharge of under other than honorable conditions (UOTHC) to general, under honorable conditions or honorable for former service member (FSM). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * FSM Death Certificate * Department of Veterans Affairs (VA) Letter of Service * DD Form 214 (Report of Separation from Active Duty) 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 that she is requesting an upgrade to her spouse’s UOTHC discharge and that any and all help would be appreciated. 3. The applicant provides a copy of the FSM’s death certificate, which shows the FSM’ date of birth as 24 February 1945, date of death as 3 November 2015, and his spouses name as X____ X___. She also provides a copy of the FSM’s DD Form 214, which shows a discharge date of 18 October 1974 with an UOTHC discharge. A VA letter, dated 14 May 2018 certifying that the FSM was discharged from the U.S Armed Forces and provides instructions on how to apply for compensation or assistance. 4. A review of the FSM’s records show: a. He enlisted in the Regular Army (RA) on 1 July 1964. A DD Form 214 shows he was discharged from the RA on 10 August 1965 with an honorable discharge for immediate reenlistment. b. DA Form 20B (Record of Court-Martial Conviction) shows that he was convicted by summary court-martial on 5 June 1968 for absence without leave (AWOL) from 13 May 1968 to 14 May 1968, and the sentenced was adjudged on 29 May 1968. His punishment included forfeiture of $136 per month for one month. c. Summary Court-Martial Order 27, dated 20 September 1968, shows the FSM was convicted of one specification of AWOL from on/about 5 September 1968 to on/about 17 September 1968 and the sentence was adjudged on 20 September 1968. His punishment included forfeiture of $140 dollars with one previous conviction considered. f. He accepted nonjudicial punishment (NJP) on 10 June 1969. g. A DD Form 214 shows that he was discharged from the RA on 12 August 1969 with an honorable discharge for immediate reenlistment. h. A memorandum, dated 26 June 1970, lists the FSM as a deserter with an effective date of 17 June 1970. i. A memorandum, dated 3 August 1974, shows that the FSM was apprehended by the Federal Bureau of Investigation on 2 August 1974. j. DA Form 3836 (Notice of Return of US Army Member from Unauthorized Absence) shows that the FSM was AWOL from 1 June 1970 and returned to military custody on 31 July 1974. k. The FSM applied to the Joint Alternate Service Board which would require him to serve 13 months of alternate service. l. On 16 October 1974, the FSM provided a statement to the board for alternate service stating that his reason for absence from the military was that while stationed at FT Bliss, Texas he applied for a hardship discharge because he was supporting his family and grandmother at the same time. His wife was also having a hard time adjusting to life in this country. He was assigned to a prisoner transport detail and given permission to visit his family for a while. He called his first sergeant and asked about his hardship discharge and told that it should be approved any day. The FSM asked what he should do and was told by his first sergeant (1SG) to stay home rather than come all the way back to Texas and then go back home and that all of his paperwork would be sent to him. Approximately 1 month later he received a letter from his insurance company saying that they had been notified of his discharged. His grandmother received a letter from the Army saying that he was missing and then received a second letter stating the first letter was a mistake. He made a mistake in not contacting Fort Bliss and making sure of his status. He was having such problems at the time that he want thinking correctly at the time. The FSM chose option 1 of the President’s Clemency Program to sign a reaffirmation of allegiance and accept an undesirable discharge. m. Orders 5104, dated 16 October 1974, authorized the FSM to proceed to the U.S. Army Clemency Center at Fort Benjamin Harrison. n. On 18 October 1974, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and the procedures and rights available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request for discharge, he acknowledged: * He was making this request of his own free will and had not been subjected to any coercion whatsoever by any person * He understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * He acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits * He acknowledged he could be ineligible for many or all benefits administered by the VA and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * He stated that under no circumstances did he desire further rehabilitation or to perform further military service * He elected not to submit a statement on his own behalf o. On 18 October 1974, the FSM reaffirmed his allegiance and pledge to complete alternate service. Special Orders 215 assigned the FSM to the Joint Clemency Processing Center, reduce him to the rank of private/E-1, and discharged him from active duty with an undesirable discharge. p. He was discharged from active duty on 18 October 1974. His DD Form 214 shows that he was discharged under the provisions of the Presidential Proclamation and Department of Defense Memo, SPD KNL for good of the service. It also shows that he completed 5 years, 1 month, and 3 days with 1,485 days of lost time. 5. The FSM’s record is void of evidence that shows he completed his 13 months of service, nor is there evidence the clemency discharge was revoked by the Army Discharge Review Board (ADRB). In addition, the FSM’s record is absent evidence showing he applied for a discharge upgrade with the ADRB within its 15-year statute. 6. The applicant’s VA letter shows the FSM served in the Army from 12 August 1969 through 18 October 1974. However, his record shows he had periods of Honorable service covered by DD Forms 214 in which the applicant may need to furnish the VA for an accurate reflection of the FSM’s service. 7. By regulation, AR 635-200, chapter 10 of this regulation states a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (revised edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. 8. In reaching its determination, the Board can 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 AWOL offense lasting multiple years, it ending only by being apprehended by federal authorities, and there was no mitigating evidence submitted by the applicant to provide reasons for the AWOL, 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. Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former Soldiers, who voluntarily entered into and completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973. a. Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge. A Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals would perform. b. Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge. The clemency discharge is a neutral discharge, issued neither under honorable conditions nor under other than honorable conditions. It is to be considered as ranking between an undesirable discharge and a general discharge. c. The clemency discharge did not affect the individual’s underlying discharge and did not entitle him to any VA benefits. Rather, it restored Federal and, in most instances, State civil rights which may have been denied due to the less than honorable discharge. If a participant of the program failed to complete the period of alternative service, the original undesirable characterization of service would be retained. 3. Army Regulation Army Regulation 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 of 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) states a 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, and unsuitability. c. Chapter 10 of this regulation states a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. 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 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. ABCMR Record of Proceedings (cont) AR20180007841 0 7 1