ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20180013824 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 9 April 2019, in which the Board members recommended denial of the applicant’s request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by amending his DD Form 214 for the period of service ending 21 July 1972 to reflect a General, under honorable conditions character of service. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 22 September 2019. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: BOARD DATE: 9 April 2019 DOCKET NUMBER: AR20180013824 APPLICANT REQUESTS: Reconsideration of his previous two requests to upgrade his under other than honorable conditions (UOTHC) discharge to an under honorable conditions (general) discharge. Additionally, he requests a personal appearance before the Board. 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 * DA Form 20B (Insert Sheet to DA Form 20, Record of Court-Martial Conviction) * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 28 September 2018 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Dockets Number AR20130008196 and AR20160007179, on 9 January 2014 and 15 February 2018, respectively. 2. The applicant states: a. He was court-martialed for not being at his appointed place of duty and driving without a license. He was 17 years old without a high school education. He wanted to serve his country in the Army and when given the opportunity, he was proud. He was assigned to a unit where his warrant officer took an interest in his wife. He would pick them up then drop him off at the gate and drive away with his wife. When he tried to stop him, he made his life a living nightmare. His wife said he was forcing her to go with him. b. He made some bad choices by going absent without leave (AWOL) for a couple of hours a couple of times because he didn’t think anyone was helping him with his situation. He was confined to jail as a result of a court-martial then kicked out of the Army. After that his life got even worse. He became an alcoholic, lost his driving privileges, and became homeless. c. Because of the circumstances behind his discharge, he never recovered. Now, at age 61, he is enrolled in a rehabilitation program where he is working on his self- esteem and taking classes to get a general equivalency diploma. He volunteers at the county Veterans Service Office transporting Veterans to and from their medical appointments. He takes full responsibility for his actions but believes it was the only way out from his problems with the warrant officer and his wife. 3. The applicant enlisted in the Regular Army on 30 July 1971. 4. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the stated infractions: * on 13 January 1972, for being AWOL on or about 10 January 1972 * on 23 February 1972, for being AWOL from on or about 14 February through on or about 22 February 1972 * on 17 March 1972, for being AWOL from on or about 15 through 17 March 1972 5. Summary Court-Martial Order Number 19 shows the applicant was convicted on 29 March 1972 of violating Articles 86 and 92 of the UCMJ. Specifically, he was convicted of two specifications of being absent from his place of duty, two specifications of driving without a license, and a single specification of dereliction of duty. 6. The applicant accepted NJP on 16 June 1972, under the provisions of Article 15 of the UCMJ, of attempting to obliterate a DD Form 689 (Individual Sick Slip), on or about 16 June 1972. 7. Court-martial charges were preferred against the applicant on or about 30 June 1972, for the following violations of the UCMJ: * two specification of failing to go to his appointed place of duty * two specifications of operating a privately owned vehicle (POV) without having it registered * two specifications of operating a POV without a valid state driver license * one specification of failing to obey a lawful order 8. The applicant consulted with legal counsel on 10 July 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 UOTHC discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service. In his request for discharge, he 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 elected not to submit any statements. 9. The separation authority approved the applicant's request for discharge on 20 July 1972, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and directed the issuance of an Undesirable Discharge Certificate. 10. The applicant was discharged on 21 July 1972. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-200, for the good of the service, and his service was characterized as under conditions other than honorable. 11. The Board should consider the applicant's provided statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the applicant had limited creditable service, no wartime service and no mitigating circumstances for the misconduct; nor did the applicant provide any evidence of rehabilitation since discharge. The Board agreed that the applicant’s discharge characterization is appropriate for the misconduct. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Dockets Number AR20130008196 and AR20160007179, on 9 January 2014 and 15 February 2018, respectively. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice require. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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 provides that 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. c. 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 and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 4. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180013824 2 1