ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 July 2019 DOCKET NUMBER: AR20180013918 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) * Letter of support written by his spouse 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC91-10657 on 18 May 1992. 3. The applicant states, in effect, he was young and entered into the service at the behest of my grandparent. He experienced great anxiety from being away from home for the first time and upon returning, learned that his mother was being physically abused by his stepfather. 4. The applicant provides a letter of support written by his spouse, which states in effect: a. They have been married since 1981 and since then, the applicant has proven to be a well-mannered, caring individual that always cared about the wellbeing of others, and always displaying his morals and determination in any situation. She's aware of the applicant's past in regards to him being absent without leave (AWOL) due to his concern over his mother's safety. b. They have two sons and two daughters. Both daughters now serve in the Army, one son was a member of US Navy, and one son is a computer programmer. Since his discharge, the applicant worked as a civil service until his retirement in 2015. He was and is still greatly admired by his former employers and employees. She knows that under different circumstances, Mark would have been an excellent asset to the military. And, as his wife, she is asking that the applicant receive an upgrade. 5. A review of the applicant's service record shows: a. He enlisted in the Regular Army on 13 August 1974. b. Special Court Martial Order 24, dated 21 April 1975, reflects the applicant was convicted during a special court martial of one specification of being absent without leave (AWOL) from 9 January 1975 to 2 April 1975. He was sentenced to be reduced to the grade of private/E-1, to perform hard labor without confinement for 30 days, restriction to the company or detachment area for 30 days, and to forfeit $150.00 pay. The sentence was adjudged on 16 April 1975. c. His DA Form 458 (Charge Sheet), dated 27 August 1975, reflects the applicant was being charged with three specifications of AWOL from 23 June to 25 June 1975, from 8 July to 14 July 1975, and from 28 July 1975 to 26 August 1975. d. On 5 September 1975, the applicant consulted with legal counsel. 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 under other than honorable conditions discharge, and the procedures and rights that were available to him. Subsequent to receiving legal counsel, he voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service. In his request for discharge, he acknowledged his understanding that: * By requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of an undesirable 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 * He was advised he could submit any statements he desired in his own behalf. He elected not to submit any statements in his behalf e. The separation authority approved the applicant's request for discharge on 23 September 1975, under the provisions of AR 635-200, chapter 10, for the good of the service, and directed that he be furnished an undesirable discharge certificate. f. He was discharged from the Army on 23 October 1975. His DD Form 214 shows he was discharged under the provisions of AR 635-200, chapter 10, for the good of the service, and his service was characterized as under other than honorable conditions. He had lost time from 9 January 1975 to 1 April 1975, from 23 June to 25 June 1975, from 8 July to 14 July 1975, and from 28 July 1975 to 26 August 1975. 6. AR 635-200, Chapter 10, states a member who has committed an offense 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. 7. The Board should consider the applicant's submissions 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 letter of support was 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. He did not provide character witness statements from third parties who can attest to his character, or evidence of post-service achievements for the Board to consider. Based upon the short term of honorable service completed prior to multiple periods of AWOL, as well as the failure to accept responsibility for the events leading to his separation, the Board agreed that the applicant'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), 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. 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. 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 based on 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. 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) AR20180013918 4 1