ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 26 July 2019 DOCKET NUMBER: AR20180009698 APPLICANT REQUESTS: upgrade of discharge from under other than honorable conditions to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), period ending 18 February 1971 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, he needs a better life and asks for help. He states he would go into the Army again, if allowed. He shares he needs the upgrade of his discharge from under other than honorable conditions to honorable to facilitate his housing needs. 3. The applicant provided a copy of his DD Form 214 as proof that he was given a under other than honorable conditions discharge in item 13a (Character of Service). 4. A review of the applicant’s service record show: a. He enlisted in the Regular Army on 15 August 1969. b. While assigned in an initial entry training status, the applicant went into a series of absent without leave (AWOL) and return to military control statuses on/through: * 3 October to 20 December 1969 * 4 to 15 January 1970 * 19 January to 31 May 1970 * 3 June to 4 August 1970 * 28 August to 19 September 1970, returned to military control * 23-28 September 1970 c. On 2 November 1970, the applicant consulted with legal counsel. He was advised of the basis for the contemplated trial by court-martial, which could lead to a bad conduct or dishonorable discharge, the possible effects of his request for discharge, and the procedures and rights that were available to him. Subsequent to receiving legal counsel, he voluntarily requested discharge under the provision 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. In his request for discharge, he acknowledged his understanding that: * by requesting this type of discharge, he could be discharged under other honorable conditions and furnished an Undesirable Discharge Certificate * he acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he was advised he could submit any statements he desired in his own behalf * he elected not to submit any statements in his behalf d. The applicant’s immediate commander recommended disapproval of his request on 2 November 1970 and recommended he stand trial by courts-martial for his offenses. His intermediate commanders recommended the same procedure on 9 November 1970. e. On 16 November 1970, the separation authority disapproved the applicant's request for discharge under the provisions of AR 635-200, chapter 10. On 20 November 1970, the applicant acknowledged receipt of notification that his discharge request was disapproved. f. On 23 November 1970, the applicant was found guilty by a general court-martial, in accordance with General Court-Martial Order number 21, dated 19 January 1971, issued by Headquarters, Fort Devens, MA, of: * one specification of absenting himself from his organization from on or about 3 October 1969 to on or about 20 December 1969 * one specification of absenting himself from his organization from on or about 4 January 1970 to on or about 15 January 1970 * one specification of absenting himself from his organization from on or about 18 January 1970 to on or about 31 May 1970 * one specification of absenting himself from his organization from on or about 3 June 1970 to on or about 4 August 1970 * one specification of absenting himself from his organization from on or about 28 August 1970 to on or about 19 September 1970 g. The court sentenced him to be discharged from the service with a Bad Conduct Discharge, and be confined to hard labor for a period of three months (no previous convictions considered) The sentence was adjudged on 23 November 1970. h. On 19 January 1971, the convening authority approved the sentence. The record of trial was forwarded to the Judge Advocate General of the Army for review by a Court of Military Review. Pending the completion of appellate review, the applicant would be confined at the Post Stockade, Fort Devens, MA or elsewhere as competent authority have directed. The applicant’s record is void of the results of the appellate review. i. In addition to the periods of absence referenced in the general court-martial, a memorandum from the Commander, Casual Holding Detachment, Fort Devens, MA, dated 17 February 1971, determined, based on official morning report extracts (DA Form 188), received from the applicant’s unit, he was AWOL one final time (from 23 to 28 September 1970). The applicant returned to military control on 29 September 1970. His service record was void of said reports and/or documents that would have changed his status to “AWOL” and “returned to duty”. i. Special Orders Number 34, dated 17 February 1971, issued by Headquarters, Fort Devens, MA, assigned the applicant to the U.S Army Transfer Point for separation processing effective 18 February 1971. j. The applicant was discharged from active service on 18 February 1971 under the provisions of AR 635-200 (chapter 11), with a separation program number (SPN) 292, for an other than desertion (court-martial) reason. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his service was characterized as under other than honorable conditions. He completed 3 months and 17 days of active service during this period and had 441 days of lost time. 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 (AR 635-200), an individual who was placed on excess leave without pay pending completion of appellate review may be discharged without returning to a military installation when the sentence is affirmed. When appellate review is completed and the affirmed sentence ordered executed, the appropriate discharge documents will be completed and mailed by registered mail to the address furnished by the individual. 7. By regulation (AR 635-5-1, Personnel Separations-Separation Program Designators), enlisted personnel are discharged under SPD code 292 with the reason for separation of “other than desertion (court-martial)” under the provisions of AR 635-200, chapter 11. 8. The Board should consider the applicant's submissions in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the short term of honorable service completed prior to multiple lengthy periods of AWOL, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. AR 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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. Paragraph 11-6 of that regulation provides, in pertinent part, an individual who was placed on excess leave without pay pending completion of appellate review may be discharged without returning to a military installation when the sentence is affirmed. When appellate review is completed and the affirmed sentence ordered executed, the appropriate discharge documents will be completed and mailed by registered mail to the address furnished by the individual. 3. AR 635-5-1, section III, provides in part, enlisted personnel are discharged under SPD code 292 with the reason for separation of “other than desertion (court-martial)” under the provisions of AR 635-200, chapter 11. 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 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) AR20180009698 4 1