ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 July 2019 DOCKET NUMBER: AR20180012351 APPLICANT REQUESTS: the characterization of service of her deceased husband, a former service member (FSM) by upgraded from under other than honorable conditions to honorable. 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) * Letters of support FACTS: 1. The FSM 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 FSM's failure to timely file. 2. The FSM is deceased. His widow states that he received his discharge due to serving in the Vietnam era. 3. The FSM provides: a. A letter of support from Mr. X___, that says the FSM helped the needy and his family is well respected. The FSM lost his battle with multiple sclerosis and is missed. b. A letter of support from Mr. X___, that is the same letter as above. c. A letter of support from Ms. X___, that says she knew the FSM for 30 years and that he was like a brother to her. He raised good children and his absence is felt by all. d. A letter of support from Mr. X___, that says the FSM was like a brother. He raised five children while being blind and suffering from multiple sclerosis while still keeping his head high. e. A letter of support from Pastor X___, that says the FSM was a great man. He helped guide church members in times of trouble and weakness. He contributed to the church. f. A letter of support from Mr. X___, that says the FSM helped the elderly on a daily basis. He helped Mr. AS in times of need inside and outside the home and gave much to his friends. g. A letter of support from Ms. X___, that says the FSM was a dear friend. He helped her daughter stay focused in school and to go to college. Her daughter really admired him. Without him, her daughter would not have gone to college. 4. A review of the FSM’s service records shows: a. He enlisted in the Regular Army on 28 June 1973. He served in Germany from 21 January 1975 to 10 August 1975. b. On 10 July 1975, he was convicted on one specification by a special court martial for being absent without leave (AWOL) from 1 March 1975 to 5 June 1975. The court sentenced him to be confined at hard labor for 60 days, and forfeiture of $50 pay per month for 6 months. c. His service record shows he was AWOL from 24 July 1974 to 13 September 1974, from 1 March 1975 to 4 June 1975, from 13 July 1975 to 27 August 1975, and from 18 February 1976 to 26 May 1976. d. His DD Form 458 (Charge Sheet) and consultation with legal counsel and acknowledgements thereunder are not available in his service record. Likewise, recommendations from his chain of command and separation authority approval for the request for discharge under the provisions Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, (Discharge for the Good of the Service) are also not available in his record. e. On 19 August 1976, he was discharged from active duty under the provisions of chapter 10, AR 635-200 with an conditions other than honorable characterization of service (undesirable discharge). Order Number 32-238 shows he would receive an Undesirable Discharge Certificate. f. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of chapter 10 of AR 635-200 with an under other than honorable conditions characterization of service. He completed 2 years, 4 months, and 4 days of active service. He had 292 total days lost from 24 July 1974 to 13 September 1974, from 1 March 1975 to 4 June 1975, from 13 July 1975 to 27 August 1975, from 18 February 1976 to 26 May 1976. It also shows he was awarded or authorized the National Defense Service Medal and the Expert Rifle M-16 Qualification Badge. 5. 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. An Undesirable Discharge Certificate normally is appropriate for a member who is discharged for the good of the service, in lieu of trial by court-martial. 6. In reaching its determination, the Board can consider the FSM’s petition and his service record 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 and letters of support 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. The FSM had multiple lengthy periods of AWOL, offenses of a criminal nature, and although he served during peacetime in Germany, there is no record he served in Vietnam. The Board agreed that the FSM’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. 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. c. Chapter 10 of this regulation 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. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180012351 4 1