IN THE CASE OF: BOARD DATE: 24 June 2019 DOCKET NUMBER: AR20180013695 APPLICANT REQUESTS: The applicant requests an upgrade of his undesirable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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 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 the Army kicked him out because he had glasses to perform his duties as a “teletypist.” The Army’s decision cost him his education. 3. Having had prior honorable service, on 27 January 1971, the applicant enlisted in the Regular Army for a period of 4 years. 4. His record shows he was absent without leave (AWOL) from on or about 13 August to 9 September 1971. He was dropped from the Army’s rolls on 10 September 1971, and returned to military custody on or about 27 September 1971. 5. On 29 October 1971, while assigned to the Personnel Control Facility at Fort Campbell, KY, court-martial charges were preferred against the applicant for being AWOL from on or about 13 August to 27 September 1971. 6. The applicant voluntarily requested a discharge in lieu of trial by court-martial, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. a. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provisions of chapter 10, AR 635-200. b. He elected to submit statements in his own behalf and stated, in pertinent part, he reenlisted for a school which he was dropped, because he did not have glasses and he went to mental hygiene a few times. Before leaving Fort Gordon, GA, he was told that he would not have to drive a truck and could go into supply. Also, if he stayed in the Army for 4 years he would not make any rank because he did not believe “black and white” could get along. c. His chain of command recommended approval of his discharge under other than honorable conditions. d. The separation authority approved the applicant’s request to be discharged for the good of the service in lieu of trial by court-martial and directed he be furnished an Undesirable Discharge Certificate. 7. On 10 November 1971, the applicant was discharged accordingly. He completed 8 months of net active service this period. He had lost time from 13 August to 26 September 1971. The applicant was not awarded a personal decoration. 8. On 30 October 1981, the Army Discharge Review Board notified the applicant that he was properly discharged. His request for a change in the character and/or reason of his discharge was denied. 9. The applicant contends he was discharged from the Army because he had to wear glasses to perform his duties; however, the evidence shows he was AWOL and voluntarily requested to be discharged for the good of the service in-lieu of trial by court- martial. He did not provide evidence supporting his claims. 10. The record contains no indication of procedural or other errors that would tend to have jeopardized the applicant’s rights. 11. Army Regulation 635-200 states that, a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge in lieu of trial by court-martial. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 12. Army Regulation 15–185 (Army Board for Correction of Military Records (ABCMR)) states, in pertinent part, 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. 13. In reaching its determination, the Board should consider the applicant's petition, service record, and statements in light of the published Department of Defense guidance on equity, injustice, or clemency. 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, his record of service and previous honorable service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that relief was not warranted. 2. After reviewing the application and all supporting documents, the Board found that 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 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 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). In pertinent part, it states 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An under other than honorable conditions discharge is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 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. ABCMR Record of Proceedings (cont) AR20180013695 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180013695 6 ABCMR Record of Proceedings (cont) AR20180013695 4