ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 23 August 2019 DOCKET NUMBER: AR20190000759 APPLICANT REQUESTS: The applicant requests that his under other than honorable discharge be upgraded to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) * Personnel Qualification Record * Record of Proceedings under Article 15 (x5) * Letter/VA Form 21-4138 [VA Benefits Statement] 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 contends that his Article 15’s were unjust do to the fact that he was on temporary duty to another unit at the time they were executed. 3. On 11 November 1974, the applicant joined the Army on a 3 year contract. He completed both Basic and Advanced Individual Training, and was awarded the military occupational specialty (MOS) 67N (UH1 Helicopter Repairman) and subsequently assigned to Fort Ord, CA on 2 May 1975 4. A review of the applicant's personnel qualification record shows he was absent without leave (AWOL) from 2 July 1976 to 7 July 1976. His records shows he accepted nonjudicial punishment on six occasions. * Failure to go to prescribed place of duty on o 28 July 1975 o 4 June 1976 o 27 July 1976 9 August 1976 * 26 August 1975 for being absent from your place of duty on 25 - 26 August 1975 * 18 August for wrongful possession of a controlled substance and for breaking restriction on 10 August 1976 5. On 23 July 1976, the applicant’s immediate commander notified the applicant he was initiating action to separate him under the provisions of Army Regulation (AR) 635-200, (Personnel Separations – Enlisted Personnel), Chapter 13, paragraph 13-5a for misconduct due to frequent incidents of a discreditable nature with civil and military authorities. a. The applicant acknowledged he had been notified of the pending separation action against him and he had been advised by his consulting counsel of the basis for the contemplated action, understood his rights, waived his right to have his case considered before a board, and elected not to submit statements in his own behalf. b. In the immediate commander’s report/recommendation, the commander stated that the applicant had failed to pay just debts and repeated incidents of AWOL and failure to repair. He has been counseled by his supervisor, the commander, Red Cross, and Army Emergency Relief. The appropriate approval party approved the separation on 30 August 1976. 6. On 20 September 1976, the applicant was discharged accordingly. His service was characterized as under other than honorable conditions. He completed 1 year, 10 months, and 4 days of total active service with 6 days of lost time. He is awarded the marksmanship badge for the M16 Rifle and the aircraft crewman badge. 7. The applicant provides a self-authored statement on a VA Form, it states: a. While in basic training he volunteered and was selected to be a guard duty driver, as a result he obtained a military driver's license and promoted to private (E2/PV2). He completing advanced individual training and was promoted to private first class (E3/PFC). He was assigned to Fort Ord, CA where he was again selected to be a driver. He worked as a driver for four months. He got married to a woman who had a daughter and within 6 months of discharge they were divorced. During that time he received NJP for not being in the proper place at the proper time. There were times he was supposed to be in formation but had orders from the previous day to get my vehicle by and be ready to drive at 0700 hours the next morning. Additionally, during that time there was a change of command, the outgoing commander was aware he was having family problems which was also a factor in me receiving NJP. b. The 6 days of AWOL was a result of his wife packing the kids and house up and moving back to Riverside, CA with her parents. He had approximately 6 days he could take off and contacted the first sergeant advising him I need to take off and go down and pick up my wife. The first sergeant advised he would ask and came back later and told the applicant he could take six days and as soon as he returned they would do the paperwork because the company clerk was not on duty. He took the first sergeants word on being able to depart on leave. He returned with his family to find that he was being charged for AWOL. He did not contest because there was no way for him to. He was removed from being a driver and detailed to the airfield for the remaining time in service. During that time the only person he saw before he was discharged was the Army psychiatrist. The separation process took seven days and I was discharged due to AWOL and the NJPs. 8. AR 635-200, chapter 13, separation for misconduct, unfitness, or unsuitability, paragraph 13-5a(1), provided an individual would be subject to separation for misconduct if he or she exhibited frequent incidents of a discreditable nature with civil or military authorities. An individual separated by reason of misconduct will be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstances in his or her case. 9. The applicant states his NJP was a result of performing his duties in another section and there was no communication within the unit as well as he was going through a bad time with his spouse. His records shows that he had multiple infractions of a one year time period and was ultimately discharged for misconduct. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration if discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, his reason for being AWOL the reason for his separation and whether to apply clemency. The Board found insufficient in-service mitigation for his misconduct and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. The Board determined, based on a preponderance of evidence, that the character of service the applicant received at separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found 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. 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provided for the separation of enlisted personnel from the Regular Army. It states: a. Chapter 13 established policy and prescribed procedures for separating Soldiers for unfitness and unsuitability. Paragraph 13-5a(1) under the provisions of unfitness, provided an individual would be subject to separation for unfitness if he or she exhibited frequent incidents of a discreditable nature with civil or military authorities. An individual separated by reason of unfitness will be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstances in his or her case. b. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. An honorable discharge is a separation with honor. An honorable discharge 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. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. a. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. b. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant.