ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 April 2019 DOCKET NUMBER: AR20180014804 APPLICANT REQUESTS: The applicant requests his undesirable discharge be upgraded. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certification Release of 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 that he requests an upgrade of his undesirable discharge because he has completed alternative service. Of note, there is no supporting data in the applicant records that speaks of alternative service. 3. On 14 October 1969, the applicant enlisted in the Regular Army for 3 years at the age of 17. A review of his record shows he was absent without leave (AWOL) on 5 occasions: * 2 July through 11 August 1971 * 21 September through 20 October 1971 * 27 January through 24 February 1972 * 25 February through 25 October 1972 4. The applicant’s records are absent of a separation packet; however, special orders Number 189 dated 30 November 1972 show he was discharged for the good of the service under other than honorable conditions. His DD Form 214 shows he completed 2 years and 28 days of net active service. He was awarded the National Defense Service Medal and marksmanship badge for the M-14 and M-16 rifles and had 384 days of lost time for being AWOL. 5. Presidential Proclamation 4313 was issued on 16 September 1974 by President Ford. It identified three categories of persons and permitted them to apply for clemency discharge. a. The applicant categories were: * civilian fugitives who were draft evaders * members of the military who were still AWOL * former military members who had been discharged for desertion, AWOL, or missing movement. b. Those individuals who were AWOL were afforded the opportunity to return to military control and accept an undesirable discharge or stand trial. Those who elected to earn a clemency discharge (AWOL’s and discharged members) could be required to perform up to 24 months alternate service. Upon successful completion a clemency discharge would be issued. 6. 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. 7. The applicant’s record shows that he completed 2 years 8 months of his 3 year service obligation. His record is void of evidence showing completion of alternative service. 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. 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 and no supporting evidence of mitigating circumstances for the misconduct. The applicant claims that he should be afforded a clemency discharge under the program established by President Ford, however the applicant provides no substantiating evidence that he completed the alternative service required to obtain such a clemency discharge. The Board agreed that the applicant’s discharge characterization is appropriate for 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. 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 600-200 (Enlisted Personnel Management System), in effect at the time, stated when the general court-martial authority determined that a Soldier was to be discharged from the service under other than honorable conditions he was reduced to the lowest enlisted grade. Board action was not required for this reduction. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, 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 for the good of the service 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 UOTHC 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. 5. Presidential Proclamation 4313 was issued on 16 September 1974 by President Ford. It identified three categories of persons and permitted them to apply for clemency discharge. Those categories were: a. civilian fugitives who were draft evaders b. members of the military who were still AWOL c. former military members who had been discharged for desertion, AWOL, or missing movement. 6. Those individuals who were AWOL were afforded the opportunity to return to military control and accept an undesirable discharge or stand trial. Those who elected to earn a clemency discharge (AWOL’s and discharged members) could be required to perform up to 24 months alternate service. Upon successful completion a clemency discharge would be issued. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180014804 4 1