BOARD DATE: 16 January 2020 DOCKET NUMBER: AR20180015011 APPLICANT REQUESTS: in effect, that his under other than honorable conditions (UOTHC) discharge be changed to an uncharacterized discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 7 August 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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, in effect: a. He was forced to enlist by his father when he was a junior in high school. His father no longer wanted financial responsibility for him and gave him the option of joining the army or going to juvenile hall. He didn't want to go to jail, so he enlisted and found out he was not mature enough for the structure of the Army. He was told if he went absent without leave (AWOL), the Army would discharge him. He was not mentally old enough to join but was physically mature enough. He isn't sure his father actually signed approval for him to enlist, as he was a minor. b. His family was unaware, his father was preparing to leave in 1971 and divorce his mother, who he was married to since 1948. His father had a career in the military and was discharged in 1969. He didn't know his father was making life miserable for him and his sister to boot them out of the home and from under his financial responsibility, just prior to his leaving his mother. He met someone at work and left his mother in early 1972. His father did not want financial responsibility for his children and made that clear. He moved away and fought to not have to pay child support. His enlistment was forced and there was nothing he could do. He had no choice and no intention of trying to get out of the military once he was in. He found out the military was too much of what he had already lived his entire life, as a military brat, born and raised on military bases. It is wrong for him to never be able to be a Soldier, he was young at the time, and was in for the wrong reason. He was exposed to new things in the military, including alcohol and drugs. c. He found himself in a world where he did not belong, he should have been in school learning to be an adult. While in the military he was encouraged to go AWOL, as is jokingly done in the military but also was told by a captain that if he did go AWOL, he would eventually be let out. So he did. He did not fully understand the consequences of his actions, especially when he was treated as a traitor when discharged. He has lived with this for 47 years, his military record makes him sound like a criminal. He never had problems with the law prior to his military service. He was not ready, nor interested in this but had no choice. d. To say he would never have been a decent or outstanding Solder is not correct. His family has served since as far back as he can remember. He lived it growing up, so to claim he is not suitable for the military is wrong. The military is built in him; he was just too young and not ready in 1971. It didn't help that the Vietnam War was taking place during his enlistment, which also concerned him. His father thought nothing of taking him out of high school and placing him in that environment, so he was released of his responsibility. He hasn't been the same since 1971, not only was he forced into the military but also, he was not allowed to graduate high school. 3. In preparation for the applicant's enlistment into the Regular Army, his parents signed a DD Form 373 (Consent, Declaration of Parent or Legal Guardian) on 23 June 1971. The applicant enlisted in the Regular Army on 30 June 1971. 4. The applicant received nonjudicial punishment (NJP) on 26 July 1971, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for absenting himself from his unit from on or about 22 July 1971 until on or about 23 July 1971. 5. The applicant's commander notified the applicant on 2 November 1971 of his intent to initiate separation actions against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), by reason of unfitness for military service. The applicant acknowledged receipt of the notification the same day. 6. The applicant underwent a mental status evaluation on 3 November 1971, the examining physician noted he had no significant mental illness, was mentally responsible, was able to distinguish right from wrong, was able to adhere to the right, had the mental capacity to understand and participate in board proceedings, met retention standards prescribed Army Regulation 40-501 (Standards of Medical Fitness), had no psychological problems, and had no behavior or character disorders. 7. The applicant's commander formally recommended his separation from service on 8 November 1971, under the provisions of Army Regulation 635-212, by reason of unfitness - frequent incidents of a discreditable nature with civil or military authorities. He noted the applicant was counseled on the following occasions: * on 14 September 1971, for the consequences of AWOL * on 16 September 1971, offered Article 15 * on 24 October 1971, read his rights under Article 31, UCMJ * on 25 October 1971, warned continued behavior could result in AR 635-212 * on 26 October 1971, Informed of benefits of honorable discharge & disabilities of receiving other than honorable discharge * on 2 November 1971, read rights under Article 31, UCMJ * on 7 November 1971, imitated proceedings under AR 635-212 8. The applicant consulted with counsel on 8 November 1971 and acknowledged receipt of the proposed separation notification. He futher acknowledged that he: * had been afforded the opportunity to be represented by counsel but waived further representation * waived consideration of his case by a board of officers, and a personal appearance before a board * elected not to submit statements in his own behalf * may be deprived of many rights and benefits as a Veteran under both Federal and State law * may encounter substantial prejudice in civilian life if he were issued a general discharge * made these choices freely, without threats or coercion, or without promises of any kind 9. Before a summary court-martial on or about 9 November 1971, at Fort Ord, CA, the applicant was found guilty of the following charges: * one specification of without authority, failing to go at the time prescribed to his appointed place, on or about 29 October 1971 * one specification of without authority, failing to go at the time prescribed to his appointed place, on or about 30 October 1971 * one specification of without authority, absenting himself from his unit, on or about 31 October 1971, and remaining so until on or about 2 November 1971 10. The applicant's sentence included confinement at hard labor for 30 days (hard labor of excess of 15 days was suspended for four months), and forfeiture of $95 pay for one month. 11. The applicant's intermediate commander recommended he be separated on 10 November 1971, under the provisions of Army Regulation 635-212, based on unfitness. 12. The separation authority approved the recommendation for discharge on 17 November 1971 and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 13. The applicant was discharged on 19 November 1971, under the provisions of Army Regulation 635-212. The DD Form 214 he was issued confirms his service was characterized as UOTHC. 14. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his UOTHC discharge. After careful consideration, the ADRB denied his request on 27 June 1983. 15. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. 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 age at enlistment, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found that applicant’s requested character of service was not appropriate considering his misconduct. Based on a preponderance of evidence, the Board did determine that the character of service the applicant received was too harsh and a correction was required as a matter of equity. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 for the period of service ending 19 November 1971 to reflect in item 13a (Character of Service) – “Under honorable conditions (general)” vice “Under other than honorable conditions.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing his character of service to “uncharacterized.” 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 635-200 (Personnel Separations – Enlisted Personnel), then in effect, provided the criteria governing the issuance of honorable, general, and undesirable discharge certificates. a. Paragraph 1-9d provided that 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 be clearly inappropriate. b. Paragraph 1-9e provided that a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. Army Regulation 635-212, then in effect, provided the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued. 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. a. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs 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. b. 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. c. 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) AR20180015011 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180015011 6 ABCMR Record of Proceedings (cont) AR20180015011 5