ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 April 2019 DOCKET NUMBER: AR20180016814 APPLICANT REQUESTS: An upgrade of his service characterization, from under other than honorable conditions (UOTHC) to either under honorable conditions or honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending on or about 28 January 1972 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 violated its side of his contract. [The applicant does not indicate what part or how the Army violated his contract.] 3. The applicant enlisted in the Regular Army on 6 September 1966. His enlistment documents do not include any guarantees other than training as a Wire Maintenance Specialist. 4. A summary court-martial, adjudged on 6 February 1967, found the applicant guilty of being absent without leave (AWOL) from on or about 31 October 1966 through on or about 20 December 1966. It recommended a sentence of confinement for 30 days and forfeiture of $50.00 pay for one month. The convening authority approved the findings and sentence but suspended the confinement for one month. 5. A special court-martial, adjudged 16 February 1968, found the applicant guilty of being AWOL from on or about 25 July 1967 through on or about 5 February 1968. The approved sentence was confinement for 6 months and forfeiture of $67.00 pay for one month. 6. Court-martial charges were preferred on 24 November 1971 for his absence, in desertion, from on or about 17 April 1969 through on or about 17 November 1971. 7. A U.S. Department of Justice, Federal Bureau of Investigation (FBI) Report, dated 24 November 1971, shows: * the applicant was reported as absent on 17 April 1969 * the FBI contacted his wife on two occasions, who reported: * the applicant escaped from the post stockade in April 1969 * they went to Canada but later returned * he was living in Los Angles under an assumed name * in December 1969, he planned to leave for England * in January 1970, he returned to Canada with an unknown girl * between August 1970 and April 1971, several FBI contacts reported that the applicant was known to have used multiple illegal drugs (including acid, hashish, mescaline, and marijuana) * the FBI located and apprehended the applicant on 16 November 1971 * the applicant confirmed that during his 2.5 years period of desertion, he had gone to Canada twice, he had been living under eight aliases to avoid arrest, and he had used but was not addicted to narcotics, which he stopped using when he join the Church of Scientology 8. The applicant consulted with legal counsel on 1 December 1971. a. 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. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 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 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 a bad conduct or dishonorable discharge. He further 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. c. He was advised he could submit any statements he desired in his own behalf. He submitted a statement to accompany his separation request, wherein he noted: * he had 8 months of good time and 4 years and 4 months of bad time * he was twice court-martialed for being AWOL * he was pending charges for being absent for 2 years and 7 months * if his 4 and 1/2 years of bad time wasn't enough [to be discharged] he would go AWOL again * he did not like the Army and wanted out 9. The appropriate authority approved the applicant's request for discharge on 25 January 1972, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed that the applicant be reduced to the lowest enlisted grade and receive an Undesirable Discharge Certificate. 10. The applicant was discharged on or about 28 January 1972. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, and his service characterization was UOTHC. His DD Form 214 shows: * he was discharged in the rank/grade of private/E-1 * 2 years, 8 months, and 8 days of net service this period * no personal awards or decorations * he was not awarded a military occupational specialty * 974 days of lost time from 17 March 1969 through 16 November 1971 11. The DD Form 214 incorrectly lists the applicant's lost time. His first two AWOLs (247 days) and earlier period of confinement (180 days) were not shown and his third AWOL is shown as commencing a month prior to its actual commencement date. His correct total lost time is 1,370 days. This reduces his net service time and total active service to 593 days (or 1 year, 7 month, and 18 days). 12. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 13. The Board should consider the applicant's overall record and statement 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 discussed his statement, the frequency and duration of his absences, the lack of evidence provided in mitigation and the clemency guidance. The Board determined that his discharge and character of service was appropriate for the misconduct that led to his separation. 2. After reviewing the application and all supporting documents, the Board determined that relief was not warranted. 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. 5/31/2019 X CHAIRPERSON 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 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 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 UOTHC is normally considered appropriate. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge certificate. 4. The Manuel for Court-Martials show for a violation of Article 86 (AWOL) the maximum punishment for more than 30 days and terminated by apprehension is a dishonorable discharge, 1 and 1/2 years of confinement and a total forfeiture of all pay and allowances. 5. 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.