ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 May 2019 DOCKET NUMBER: AR20180016500 APPLICANT REQUESTS: in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 15 June 1973, to show his service was characterized as honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Forms 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), with self-authored statements dated 17 and 22 September 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 the Army said he had to make up his 99 days of bad time and he did. He went on to serve honorably, made the rank/grade of specialist four (SP4)/ E-4 within a 1 year, and led his company to be the only company with zero gigs on the Inspector General’s inspection. He should have been discharged in March 1973 instead of in June. He worked and retired from the Department of Veteran Affairs (VA) hospital after 34 years and he has no felony convictions. He was under the impression his discharge would be upgraded six months after his discharge. 3. The applicant was inducted into in the Army of the United States (AUS) and entered active duty on 10 March 1971. 4. The applicant accepted nonjudicial punishment (NJP) on 16 September 1971, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for absenting himself from his unit without authority, from on or about 10 September 1971 through on or about 14 September 1971. His forfeiture of pay was suspended for 60 days, but the suspension was vacated on 29 October 1971. 1. 5. Special Orders Number 6, issued by the U.S. Army Personnel Control Facility, Fort Leonard Wood, MO on 10 January 1972, shows the applicant was returned to military control on 5 January 1972 from an absent without leave (AWOL) status, after having been reported AWOL on or about 26 October 1971 and dropped from the rolls on or about 26 November 1971. 6. Before a special court-martial on 21 January 1972, at Fort Leonard Wood, MO, the applicant was convicted of being AWOL from on or about 26 October 1971 through on or about 5 January 1972. His sentence included confinement at hard labor for 30 days, to be served at the Post Stockade, Fort Leonard Wood, MO. The sentence was approved and ordered duly executed on 28 January 1972. 7. His record contains Special Orders Number 163, issued by Headquarters, U.S. Army Training Center and Fort Leonard Wood, MO on 12 June 1973, which ordered his release from active duty (REFRAD) effective 15 June 1973, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 2, by reason of expiration of his term of service. These orders show he was separated in the rank/grade of SP4/E-4, with service characterized as under honorable conditions. 8. The applicant was REFRAD on 15 June 1973. The DD Form 214 he was issued shows in item: * Item 11c (Reason and Authority), the entry "CHAP 2 AR 635-200 SPN 201 EXPIRATION OF TERM OF SERVICE" * Item 11d (Effective Date), the entry "15 June 73" * Item 13b (Character of Service), the entry "UNDER HONRABLE CONDITIONS" * Item 22 (Total Active Service), the entry "1 year, 11 months, and 29 days" of creditable active military service * Item 26a (None Pay Periods), the entries "14-14JUN71"; "29-29JAN73"; "26OCT71-4JAN72"; "31JUL-2AUG71"; "10-13SEP71"; and "25-26MAR72" * Item 30 (Remarks), the entry "99 DAYS LOST UNDER 10 USC 972: 14- 14JUN71, 31JUL-2AUG71, 10-13SEP71, 29-29JAN73, 26OCT71-4JAN72, 28JAN-13FEB72, 25-26MAR72" 9. Orders 02-1038714, issued by the Office of the Adjutant General, Reserve Component Personnel and Administration Center, St. Louis, MO on 23 February 1977, discharged the applicant from the USAR effective 9 March 1977. These orders show he received a general discharge. 10. The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. 1. 11. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were 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 or evidence of post-service achievements for the Board to consider. Based upon the record, 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. 5/28/2019 X CHAIRPERSON Signed by: 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, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214. It provided that the DD Form 214 was a summary of a Soldier's most recent period of continuous active duty, and was prepared for all personnel at the time of their retirement, discharge, or release from active duty. 3. Army Regulation 635-200, in effect at the time, provided for the discharge of enlisted personnel upon expiration of term of enlistment and set forth the general provisions governing the release from active duty of enlisted and inducted persons prior to expiration of their terms of service. It stated: a. Discharge certificates are furnished to enlisted and inducted personnel when they are discharged. The five types of discharge certificates, the issuance of which is governed by this regulation, include the DD Form 257A (General Discharge Certificate). Because the type of discharge may significantly influence the individual's civilian rights and eligibility for benefits provided by law, it is essential that all pertinent factors be considered so the type of discharge will reflect accurately the nature of service rendered. The policy of the Department of the Army is to base evaluation of an individual's service and conduct on his overall enlistment period rather than on any disqualifying entries in his service record during a particular portion of his current service. b. The character of service will be determined only by the member's military record of the current enlistment or current period of service, which record includes an individual's military behavior and performance of duty. c. An honorable discharge is a separation with honor. Issuance will be conditioned upon proper military behavior and proficient performance of duty during the member's current enlistment or current period of service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks, he may be furnished an honorable discharge. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). A member will not necessarily be denied an honorable discharge solely by reasons of a specific number of convictions by courts-martial or actions under Article 15 of the UCMJ. It is the pattern of behavior a. and not the isolated instance which should be considered the governing factor in determination of character of service to be awarded. d. 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. A general discharge may be issued if an individual has been convicted of an offense by general court-martial or has been convicted by more than one special court-martial in the current enlistment period or obligated service or any extension thereof. The decision is discretionary; especially if there is evidence that the individual's military behavior is sufficiently serious to raise a question as to the member's potential for further useful military service. 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.