ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: DOCKET NUMBER: AR20180011995 APPLICANT REQUESTS: Her deceased husband's under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), with self-authored statement dated 2 August 2018 * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), with self-authored statement dated 2 August 2018 * State of Arizona Marriage License and Marriage Certificate, dated 12 June 1969 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 25 May 1972 * State of Arizona, Department of Health Services – Bureau of Vital Records Certificate of Death, dated 21 September 2017 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); 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, that her husband (now a deceased former service member (FSM)) served over 47 years ago and his family is still paying for his mistakes. She did not know he went absent without leave (AWOL) or that his service was considered UOTHC and could negatively affect her as a dependent. She agrees he should have been punished for his actions but his discharge is still hurting his family 45 years later. She needs a Veterans pension but cannot apply for one. 3. The FSM enlisted in the Regular Army on 31 December 1969. 4. Summary Court-Martial Order Number 1638, issued by the Headquarters and Headquarters Command, U.S. Army Training Center, Infantry, Fort Ord, CA on 30 November 1970, shows the FSM was tried before a special court-martial on or about 20 November 1970, at Fort Ord, CA, and was convicted of being AWOL from on or about 28 July 1970 through on or about 23 September 1970. His sentence included his reduction to the rank/grade private/E-1, and was approved and ordered duly executed on 30 November 1970. 5. Court-martial charges were preferred against the FSM on 20 April 1972. His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 29 November 1971 through on or about 18 April 1972. 6. The FSM consulted with legal counsel on 20 April 1972. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the FSM voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-martial, on 4 May 1972. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further 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. c. He was advised he could submit any statements he desired in his own behalf; however, he submitted the following statement: I, [FSM], request a discharge for the good of the service under the provisions of Chapter 10, AR 635-200. I enlisted on 31 Dec 69 for 2 years. I now have 15 months good time and 9 months bad time. I have had 1 Article 15 for AWOL. I have had one Summary Court Martial for AWOL. I am now pending charges for 1 AWOL of 6 months from Ft. Huachuca. I, [FSM], am requesting a Chapter 10 discharge because I can't stay in the Army, I can't cope with its rules, I have 9 months bad time, and it is messing up my life and my family's. If it is not approved I'll keep on going AWOL until I do get out. It is for the best for both sides. I hate the Army, I will keep on going AWOL, so in the best interests of the Army, I don't care what kind of dishonorable discharge I get, I’ll take it with no second thoughts. I want out as fast as possible. I hate the Army and will keep on going AWOL over and over again, I don't need any benefits. This statement is true to the best of my knowledge. 7. The FSM’s immediate commander recommended approval of his request for discharge on 9 May 1972, under the provision of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial. His intermediate commander recommended approval of his request on 16 May 1972. 8. The separation authority approved the FSM's request for discharge on 23 May 1972, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court- martial and directed the FSM's reduction to the lowest enlisted grade and the issuance of a DD Form 258A (Undesirable Discharge Certificate). 9. The FSM was discharged on 25 May 1972. The DD Form 214 he was issued shows his service was characterized as UOTHC. His DD Form 214 further shows in: * Item 22b (Statement of Service – Total Active Service), he was credited with completing 11 months, and 2 days of service * Item 26a (Non-Pay Periods Time Lost), "28JUL70-22SEP70, 28DEC70- 17APR72" * Item 30 (Remarks) includes the entry, "534 DAYS LOST UNDER 10 USC 972: 57 DAYS, 28JUL70-22SEP70; 477 DAYS, 28DEC70-17APR72" 10. The FSM was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 11. The applicant provides the FSM’s DD Form 214, for the period ending 25 May 1972, their marriage certificate, and the FSM’s death certificate for consideration. 12. The Board should consider the applicant's statement 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 records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, the Soldier’s record of service, the frequency and nature of his misconduct, the reason for his separation, his statement prior to discharge and whether to apply clemency. The Board found no in-service mitigation and the applicant provided no evidence of the Soldier’s 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 Soldier received at separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found relief was not warranted. 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. 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 three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge was normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. 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, Boards 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. b. 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. ABCMR Record of Proceedings (cont) AR20180011995 5 1