ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 May 2019 DOCKET NUMBER: AR20190001229 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Enclosure 1 - Applicant's self-authored statement * Enclosure 2 - Letter of Support from applicant's sister * Enclosure 3 - Death certificate * Enclosure 4 - Awards and accolades from work and civilian activities * Enclosure 5 - Copies of applicant's military records 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 AR20090017453 on 27 April 2010. 2. Counsel states the applicant was drafted into active duty on 9 June 1971. This happened 2 weeks after his grandfather died; the applicant's grandfather raised him and was his only father-figure. In addition, the applicant had recently married and had a child at home; he was the only male left in his family, and served as his mother's primary care provider. Counsel asserts the applicant's chain of command should have considered him for a compassionate/hardship discharge, because of multiple family emergencies and the special circumstances he faced. The applicant successfully completed basic combat training (BCT) and advanced individual training (AIT); this reflected his general willingness to be on active duty, but his personal issues prevented him from continuing his service. Counsel notes Vietnam-era draft dodgers received Presidential pardons on 21 January 1977. To his credit, the applicant did not avoid military service; he gave the Army his best. The applicant is now over 66 years of age and disabled; he retired from the railroad after 24 years. He is a family man whose sole reason for being absent without leave (AWOL) was to care and provide for his family; their well-being was more important than his own. 1. 3. The applicant provides: * Self-authored statement indicating macular degeneration caused him to resign from education * Letter of support from his sister affirming they were raised by their grandparents and, after their grandfather's death, the applicant helped to support their grandmother, mother, the writer and their sister * Grandfather's death certificate * Letter from the railroad retirement board showing entitlement to a retirement annuity; two letters recognizing membership in fraternal organizations 4. The applicant's service records were damaged in the 1973 National Personnel Records Center fire. Many of the documents are damaged or are stuck together, due to water damage. The available documents are sufficient to show the following: a. He was inducted into the Army of the United States on 9 June 1971 at 19 years of age. Following initial training, orders assigned him to Fort Ord, CA; he arrived on or about 28 October 1971. His chain of command promoted him to private first class (PFC)/E-3, effective 3 December 1971. b. On 1 June 1972, a summary court-martial convicted the applicant of five specifications of failing to go to his appointed place of duty at the time prescribed. The court's sentence consisted of reduction from PFC to private (PV2)/E-2, forfeiture of $50 per month for 1-month, and 30 days of extra duty. On 9 June 1972, the summary court-martial convening authority approved the sentence and ordered its execution. c. On 11 July 1972, he departed his Fort Ord unit in an AWOL status. Effective 25 October 1972, he returned to military control at Fort Knox, KY; orders reassigned him to the Fort Knox U.S. Army Personnel Control Facility (PCF). d. On 6 November 1972, he left the Fort Knox PCF in an AWOL status; on 14 December 1972, civil authority arrested and jailed him. Orders showed he returned to military control, effective 19 December 1972, and was assigned again to the Fort Knox PCF. e. On 26 December 1972, he departed once more from the Fort Knox PCF in an AWOL status; he remained absent until 7 March 1973, when civil authority arrested and confined him. Orders reflected his return to military control on 7 March 1973; he was sent to the Fort Knox PCF. f. On 23 March 1973, the applicant's PCF commander preferred court-martial charges against him for three periods of AWOL: 11 July until 25 October 1972 (106 days); 6 November until 14 December 1972 (38 days); and 26 December 1972 until 7 March 1973 (71 days). g. On or about 27 March 1973, after consulting with counsel, the applicant requested discharge for the good of the service, in-lieu of trial by court-martial, under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel). In his request, he affirmed no one subjected him to coercion and his counsel had advised him of the implications of his request. He elected to submit a statement in his own behalf, writing, in effect: (1) He entered the Army already upset because he was drafted; he did not want to leave his wife and son. In addition, his grandfather died of cancer not long before he entered active duty; he had been caring for his grandfather before his death. (2) His attitude toward the Army worsened because his wife and son could not handle being without him; he loved them very much and could not stand the Army hurting his family and his marriage. His wife did not have enough money to buy things and their car was repossessed. The applicant also took care of his grandmother and sister; he would go to the house every day to get his sister ready for school. His mother had to work, and his sister's father was deceased; the applicant affirmed he never knew his own father. (3) Before he entered the Army, he stayed with his grandmother all day to care for her until his mother came home, and they paid him for doing this; his grandparents raised him. His mother said she did not know what she would do if he were not there. (4) His current attitude was he could not take it anymore. He prayed all the time, and everything was just building up inside. He missed his wife and son, and he just wanted to be home with them. His family needed him and, if given the chance, he would probably go AWOL again. h. On 12 April 1973, the separation authority approved the applicant's request and directed his undesirable discharge under other than honorable conditions; in addition, he ordered the applicant's reduction to private/E-1. On 20 April 1973, the applicant was discharged accordingly; his DD Form 214 showed he completed 1 year, 2 months and 26 days of his obligated active duty service, with 228 days of lost time. He was awarded or authorized a marksmanship qualification badge. i. On 4 May 2009, the applicant petitioned the ABCMR, requesting an upgraded discharge. He stated he had worked for the railroad until his disability retirement; he had a 9 year old grandson who started asking questions about his service and he felt a lot of guilt for having an undesirable discharge. In support of his request, he provided proof of his disability retirement and letters of support. On 27 April 2010, the Board denied his request. 5. Counsel notes, in an era when Vietnam draft dodgers avoided service and were then pardoned, the applicant accepted the draft and entered active duty. The applicant is now over 66 years of age and disabled; the applicant's sole reason for going AWOL was 1. to care and provide for his family. The UCMJ offense of AWOL for more than 30 days included a dishonorable discharge as a punishment. When charged with a UCMJ violation that included a punitive discharge, Soldiers could voluntarily request separation under chapter 10, AR 635-200. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Although the applicant through counsel provided possible mitigating factors for this misconduct, the Board concluded, based upon the relatively short term of service completed prior to multiple AWOL offenses, 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. 5/21/2019 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. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-9d (Honorable Discharge) stated an honorable discharge was a separation with honor. Issuance of an honorable discharge was conditioned upon proper military behavior and proficient duty performance. A Soldier's service was to be characterized as honorable based on conduct ratings of at least "Good"; efficiency ratings of at least "Fair"; no general court-martial, and no more than one special court- martial conviction. b. Paragraph 1-9e (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 permitted a Soldier to request discharge for the good of the service when they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial, United States 1969 (Revised Edition), included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Once approved, an undesirable discharge was normally furnished, but the discharge authority could direct either an honorable or general discharge, if warranted. 2. The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments showed Article 86 (AWOL for more than 30 days), UCMJ, included a dishonorable discharge. 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 on the basis of 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 1. might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.