IN THE CASE OF: BOARD DATE: 31 May 2019 DOCKET NUMBER: AR20180013784 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) 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 he believes the Army took advantage of him. He had 30 days to go before he was out of the Army. He was about to start his separation process to ETS. He was informed by his First Sergeant that the only way he was getting out of the Army was in a body bag because he thought he was as good as white people which was not the case; he was devastated. a. The Army that he was in was blatantly racist. If two Soldiers do something together; the white Soldier would get sent back to duty and the black Soldier would get an Article 15 or a court-martial. They didn’t care about what we thought; that’s just the way it was and how things worked. b. He went AWOL and stayed on the run for years. He believed he had no future. He went down the slope of drugs and alcohol. After years of self-doubt he got his head on straight and turned his self in at Fort Dix. He was put in the stockade for a short time and then sent to a holding company. The Soldiers called it animal farm. Most of them were there for the same reason as him. Drugs were everywhere. While at the holding company he had to sleep in his boots and field jacket, with one eye open because you belongings would be stolen. Only the first in line ate; you would have to fight to be one of the first. The Army was trying to separate them as fast as possible. c. He couldn’t continue to stay and live so he left and made his way back to Philadelphia and tried to put the experience out of his mind for years until now. He’s a retired city worker, father, and grandfather. He believes the Army stole his youth, benefits, and well-being. He hopes his case will be taken into consideration and come to a fair and just conclusion. 3. On 14 June 1971, the applicant enlisted in the Regular Army for three years at the age of 17. 4. On 29 November 1968, the applicant underwent a special court-martial and was found guilty for being absent without authority (AWOL) from on or about 3 November 1968 to on or about 18 November 1968. He was confined at hard labor for six months, forfeiture of $73.00 per month for six months and reduced to Private (E-1); the sentence was adjudged on 6 December 1968. 5. The applicant received non-judicial punishment (NJP) on three different occasions for failing to be at his appointed place of duty, for failing to be at his appointed place of duty and breaking restriction, and for wrongfully appropriate a military vehicle valued of about $3,196.00. 6. On 28 April 1971, he was charged with five specifications for being AWOL from on or about 18 February 1971 to on or about 28 April 1971; on or about 9 February 1971 to on or about 17 February 1971; on or about 5 February 1971 to on or about 8 February 1971; on or about 8 July 1970 to on or about 12 January 1971; on or about 4 May 1970 to on or about 24 June 1970. 7. On 10 May 1971, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. 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 provision of Army Regulation 635-200, chapter 10. He signed a request for discharge for the Good of the Service and indicated he would not submit statements in his own behalf. 8. The applicant's chain of command recommended approval of his request and the appropriate separation authority approved the applicant's request on 9 June 1971; he directed the applicant receive an undesirable discharge certificate. 9. On 14 June 1971, he was discharged accordingly; He completed 2 years, 9 months, and 27 days. 10. The applicant states he believes the Army took advantage of him. He had 30 days to go before he was out of the Army. He was about to start his separation process to ETS; his First Sergeant informed him that the only way he was getting out of the Army was in a body bag because he thought he was as good as white people which was not the case; he was devastated. He believed the Army was blatantly racist because, if two Soldiers do something together; the white Soldier would get sent back to duty and the black Soldier would get an Article 15 or a court-martial. He went AWOL and stayed on the run for years. He believed he had no future. He went down the slope of drugs and alcohol. After years of self-doubt he got his head on straight and turned his self in at Fort Dix. He’s a retired city worker, father, and grandfather. He believes the Army stole his youth, benefits, and well-being. He hopes his case will be taken into consideration and come to a fair and just conclusion. 11. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request 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. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits. 13. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD 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 discussed the nature and frequency of his misconduct, his statement and considered those in light of clemency determination guidance. The Board determined that the applicant’s statement was not sufficient to overcome the seriousness of his misconduct and that his discharge characterization did not require correction. 2. After reviewing the application and all supporting documentation, the Board determined 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 635-200 (Active Duty Enlisted Administrative Separations), as in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states: a. A Chapter 10 (Discharge in Lieu of Trail by Court Martial) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. c. 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. 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 (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) AR20180013784 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180013784 6 ABCMR Record of Proceedings (cont) AR20180013784 4