IN THE CASE OF: BOARD DATE: 28 January 2020 DOCKET NUMBER: AR20180012645 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 (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: a. A deal was made to change his discharge to honorable in April/May 1975. It was in April or May of 1975 when papers were filed and approved. He was paralyzed from a gunshot wound, and the military mailed him a letter to fill out and mail back changing his discharge status. “To start with they told him chapter 10 then to be changed”. If his memory is correct they [the Army] sent him papers because of things that were happening in the military at that time. b. He was pardoned, however, he has no evidence but his word. After he was absent without leave (AWOL), he asked to be released from the Army. He loves his country. While he was in the Army he was respected and did as he was told. He loved the Army. c. He had in-laws and a wife who were threatening him. He was being threatened with a divorce and loss of his son if he stayed in the Army. His in-laws hated the military. He was jumped on and verbally disgraced when he was on leave. They poured sugar in his gas tank causing him to breakdown going from Atlanta to Fort Bragg. He was immature when he joined the Army. He was not mentally strong enough. He had never gone anywhere or experienced anything. He made mistakes that he is now very sorry for. The military did pardon him in 1975. When he got shot, it was still repercussions from him being called names. Everyone knows what the public said and called the Soldiers. d. It has taken him all of his life to overcome mistakes he made. He loves God, his country, and his fellow man. The military understood and worked with him. In fact, when the discharge was changed, they [the Army] talked like he was not the only one this often was made to. He wants to buy a home. Please help him. He is very ashamed when anyone looks at him and says his discharge is not honorable. He loves his country and would give his life to his country and fellow man. 3. On 30 November 1970, the applicant was 18 years old and enlisted in the Regular Army for a period of 2 years. 4. On 4 August 1971, he was convicted by a summary court-martial for being AWOL from on or about 5 May to 1 July 1971. He was sentenced to perform hard labor for 45 days. 5. In August 1972, court-martial charges were preferred against the applicant for being AWOL again from on or about 31 August 1971 to 28 July 1972. 6. On 9 August 1972, the applicant voluntarily requested to be discharge for the good of the service in-lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). Prior to requesting his discharge, he was afforded the opportunity to consult with appointed counsel, or military/civilian counsel of his own choice. a. He was advised by counsel of the basis for his contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge; of the effects of this request for discharge, and the rights available to him. He personally made the choices indicated in his request to be discharged. b. He elected to make a statement in his own behalf and stated, he needed a discharge from the service to straighten out his civilian life, and for when he gets out of the service he would be able to get his wife and son back. He also stated that, if he was sent back to duty he would go AWOL again. He could not get used to the Army because he had already tried. He did not need the Army and the Army did not need him. c. On 15 August 1972, he completed a medical examination, which cleared him for chapter 10 administrative separation. d. His chain of command recommended approval of his request to be discharged, and that he be issued an Undesirable Discharge Certificate. e. On 29 August 1972, the approval authority approved his discharge and directed he be issued an Undesirable Discharge Certificate. 7. On 15 September 1972, the applicant was discharged accordingly. His character of service was listed as under other than honorable conditions. He completed 8 months and 16 days of net active service. He had 397 days of lost time. The applicant was not awarded a personal decoration. 8. The applicant contends he was pardoned; however, his record contains no evidence and he provides no evidence to support his claim. Army Regulation 15-185 (ABCMR) states that, the applicant has the burden of proving an error or injustice. The ABCMR will decide cases based on the evidence of record. It is not an investigative body. 9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred. Although an honorable or general discharge is authorized, an under other than honorable conditions discharge is normally considered appropriate. a. 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. 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. 10. In regards to the applicant requesting an upgrade so that he may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, and the character and reason for his separation. The Board noted the facts presented above. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 2. The ABCMR does not grant requests for the correction of records solely for making the applicant eligible for veterans or other benefits. Cases are decided based on the merits of the case and the evidence. 3. After reviewing the application and all supporting documents, the Board found that relief is 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. 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) 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). The regulation states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. It is not an investigative body. 3. AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred. Although an honorable or general discharge is authorized, an under other than honorable conditions discharge is normally considered appropriate. a. 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. 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. 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. 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, 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180012645 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180012645 6 ABCMR Record of Proceedings (cont) AR20180012645 5