ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 July 2019 DOCKET NUMBER: AR20180009952 APPLICANT REQUESTS: reconsideration of his previous request for upgrade of his under other than honorable conditions discharge. He now also asks to appear before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 with Self-Authored Statement * Character Reference Letters * DD Form 214 (Report of Separation from Active Duty) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060004952 on 30 October 2006. 2. The applicant states in 1975, he was young and newly drafted into the Army. He went home on leave and spent time with his girlfriend whom he had previously left behind and he found himself a day late reporting back to the unit. One day turned into two, then three and so on, and before he knew it they the military police showed up to get him. They took me to jail and while in jail he received orders to go to Vietnam. After he got out of jail, he was supposed to go to Washington to be shipped to Vietnam, but he went home instead. He was young, dumb, scared and being made to serve. He was homesick, and all he wanted was to be home. He did not understand there would be repercussions to his actions and he was never told of this. Several years later, he was told he needed to go to Fort Bragg, NC and he did. From there, he was sent to Fort Benjamin Harrison, IN where he was discharged from the Army. At the time of discharge, he was told that the discharge would be upgraded automatically after two years. However, when he went to the Veteran Service Office and requested a copy of the discharge, it showed that it had not been upgraded. As he previously stated, he was not aware that his actions carried serious consequences. Although he was 20 years old, he was still not an adult but was forced to make adult decisions that he was very incapable of making. He is not the same person he was back in 1968. He now has a family with children and grandchildren and have been a productive member of his community for many years. He has learned from his mistake and finds it necessary to mentor others about the consequences of their actions through ministry. 3. The applicant provides: * Character reference letters from XX, XX, XX, XX, and XX * Criminal Record Search * DD Form 214 4. A review of the applicant’s service record shows: a. He was inducted on 22 October 1968 in the Army of the United. b. On 29 May 1969, he was tried by special court-martial for two specifications of absence without leave (AWOL) from 9-14 April 1969 and 18 April 1969 to 19 May 1969. He was found guilty and sentenced to be confined at hard labor for two months. On 9 June 1969, the sentence was approved and ordered duly executed. On 17 June 1969, the unexecuted portion of the approved sentence to confinement at hard labor for two months, adjudged on 29 May 1969, is suspended for two months. c. On 19 June 1969, he was reported AWOL. His DA Form 20 (Enlisted Qualification Record) shows he was dropped from rolls/deserted on 3 August 1969. d. On 6 January 1975, the applicant called the Clemency Information Point requesting to participation in the Presidential Proclamation Number 4313, a program of clemency for individuals who went AWOL, were dropped from rolls, or who missed movement during the time frame 4 August 1964 – 28 March 1973 by completing an alternate service. He was instructed that as part of the program he would be given the opportunity to request discharge for the good of the service, reaffirm his allegiance to his country, and to pledge to perform alternate service for a period not to exceed 24 months. e. on 31 January 1975, he reaffirmed his allegiance and pledge to complete alternate service. He stated he would support, protect, and defend the Constitution of the United States of America against all enemies; foreign and domestic; and will hereafter bear true faith and allegiance to the same. He acknowledged that this obligation was taken freely and without any mental reservation or purpose of evasion. He further acknowledged that on or June 1969, he voluntarily absented himself from his military unit without being properly authorized, in contravention of the oath taken upon entering the nation's military service. Recognizing that his obligations as a citizen remain unfulfilled, he was ready to serve in whatever alternate service his country may prescribe for him, and pledge to complete faithfully a period of 24 months service. e. In exchange, he was allowed to submit a voluntary request for discharge. After consulting with legal counsel, he submitted a request for discharge for the good of the service pursuant to the provisions of Presidential Proclamation Number 4313. He acknowledged: * his absence is characterized as a willful and persistent unauthorized absence for which he is subject to trial by court-martial and could lead to the imposition of a bad conduct or dishonorable discharge * maximum punishment * he will be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate * he understands the adverse nature of such a discharge and the possible consequences thereof * as a result of the issuance of such a discharge, he will be deprived of all service benefits * he will be ineligible for all benefits administered by the Veteran's 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 because of an undesirable discharge * satisfactory completion of such alternate service will be acknowledged by issuance of a Clemency Discharge Certificate * such certificate will not alter his ineligibility for any benefits predicated upon his military service f. On 31 January 1975, he was discharged from active duty under the provisions of Presidential Proclamation Number 4313 and DOD Memorandum, and issued a under other than honorable conditions discharge. His DD Form 214 reflects that the completed 5 months and 22 days of active service with 556 days of lost time from 9-14 April 1969, 18 April 1969 to 19 May 1969, and 3 August 1969 to 21 Oct 1970. It also shows that he was awarded or was authorized the National Defense Service Medal. g. On 17 September 1975, his enrollment in the Reconciliation Service Program was terminated. He did not complete his required period of alternate service. The decision to terminate him from active enrollment in the program was based on the fact the applicant commenced work on an approved job. He was dismissed for unsatisfactory performance and failed to respond to official correspondence. h. On 30 October 2006, the Board determined the evidence presented does not demonstrate the existence of a probable error or injustice. The overall merits of the case are insufficient as a basis for correction of the records. The Board denied his request for an upgrade of his discharge. i. 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. 5. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 6. By law and directive, Presidential Proclamation 4313 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.The clemency discharge did not affect the individual’s underlying discharge and did not entitle him to any Veterans Administration benefits. Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge. 7. By regulation, 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. 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: 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. After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions and letters of support were carefully considered. The Board considered the applicant's record, to include the short term of honorable service completed prior to multiple periods of AWOL and desertion, and the absence of evidence showing he accepted responsibility and showed remorse for the events leading to his separation. The Board applied Department of Defense guidance for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The applicant provided no evidence of post-service achievements and the Board found the character letters insufficient to support of a clemency determination. Based on a preponderance of evidence, 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. 8/20/2019 X CHAIRPERSON 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 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. c. Chapter 10 (Discharge for the Good of the Service) 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. An undesirable discharge certificate will normally be furnished an individual who is discharged for the good of the service 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. 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. 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. Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge. The clemency discharge did not affect the individual’s underlying discharge and did not entitle him to any Veterans Administration 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. 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 the 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, 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 upgrade service characterization. //NOTHING FOLLOWS//