ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 May 2019 DOCKET NUMBER: AR20180015521 APPLICANT REQUESTS: reconsideration for an upgrade to his under conditions other than honorable discharge and to appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Previous DD Form 149 * Previous Self Authored Statement * Previous Army Board for Correction of Military Records (ABCMR) * Previous ABCMR Decision FACTS: 1. 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 AC95-08170 on 27 September 1995. 2. The applicant states in 1995 he submitted a request to have his undesirable discharge upgraded to an honorable discharge. He received notification that it was denied. After he read the notification, he did not realize that the social security number listed was incorrect. He also says that the report states that he enlisted for 3 years on 3 March 1970, but listed offenses of being absent without leave (AWOL) several times in 1968. He questions how he can be AWOL prior to him enlisting in the service. He would like for his request to be reconsidered with the accurate information from his record. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 3 March 1970. b. On 11 September 1970, he was reported by his unit as absent without leave (AWOL). He returned to military control on 2 November 1970. a. c. On 14 November 1970, he was reported by his unit as AWOL. He returned to military control on 4 April 1971. d. On 2 May 1971, he was reported by his unit as AWOL. He returned to military control on 24 May 1971. e. On 23 June 1971, he was convicted by special court-martial order number 618 on three specifications of being AWOL from/to the following dates: * 11 September 1970 to 2 November 1970 * 14 November 1970 to 4 April 1971 * 2 May 1971 to 24 May 1971 f. On 25 June 1971 he was sentenced to be confined at hard labor for 5 months and to forfeit $50.00 pay for 5 months. The sentence was approved and was to be duly executed. g. On 20 September 1971, he was reported by his unit as AWOL and did not return until 5 April 1973. h. On 25 April 1975, court-martial charges were preferred against him for being in an AWOL status from 20 September 1971 to 5 April 1973. i. On 26 April 1973, he consulted with legal counsel who advised him of the contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), of the possible effects of a discharge under other than honorable conditions, if the request is approved and of the procedures and rights available to him. j. Following consultation with counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. In his request for discharge, he indicated: * he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person * he acknowledged he understood 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 * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected to submit a statement on his own behalf * k. On 26 April 1973, his commanding officer recommended he be discharged for the good of the service and receive a chapter 10, AR 635-200 and receive an under other than honorable conditions discharge. l. Consistent with the chain of command's recommendation, the separation authority approved his request for discharge under the provisions of AR 635-200, chapter 10, and directed the issuance of an under condition other than honorable discharge. m. He was discharged on 10 May 1973. His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court martial with a characterization of service of under conditions other than honorable discharge. It also shows he completed 10 months, and 19 days of active service with lost time from 11 September 1970 to 3 November 1970, 14 November 1970 to 4 April 1971, 2 May 1971 to 24 May 1971, and 20 September to 5 April 1973. n. His record also shows he was awarded or authorized the Expert Marksmanship Qualification Badge with Rifle Bar (M-16). 4. By regulation, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 5. By regulation, a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts- Martial, United States 1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. 6. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the short term of service completed prior to multiple AWOL offenses, many of them lengthy in duration, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d provides that an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e provides that a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharged by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record c. Chapter 10 of that regulation provides, in pertinent part, that an individual who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The request for discharge may be submitted at any time after court-martial charges are preferred against him, regardless of whether the charges are referred to a court martial and regardless of the type of court-martial to which the charges may be referred. The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court-martial convening authority. a. 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.