ARMY BOARD FOR CORRECTIONS OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 June 2019 DOCKET NUMBER: AR20190001897 APPLICANT REQUESTS: Her deceased husband's under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. 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), with self-authored statement dated 9 January 2019 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending period 5 March 1973 * State of California Authorization and Certificate of Confidential Marriage, dated 30 November 1985 * State of Alabama Center for Health Statistics, Certificate of Death, dated 23 March 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, 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 her husband, now a deceased former service member (FSM), re-entered the service and served honorably on a date after his initial UOTHC discharge. The second stint in the military resulted in an honorable discharge; however, his records for that service are difficult to find. She has requested copies of those records through the appropriate agency (NPRC) but has not received them. 3. The FSM enlisted in the Regular Army on 22 June 1972. 4. The FSM’s records show: a. Court-martial charges were preferred against the FSM on 31 August 1972 for violations of the Uniform Code of Military Justice (UCMJ). The DD Form 458 (Charge Sheet) shows he was charged with absenting himself from his unit at the Advanced Individual Training (AIT) Brigade, Fort Polk, LA, from on or about 7 August 1972 through on or about 8 August 1972, and absenting himself from his unit at the U.S. Army Personnel Control Facility, Fort Bragg, NC, from on or about 21 August 1972 through on or about 28 August 1972. b. Special Court-Martial Order Number 248, issued by the U.S. Army Personnel Control Facility, Fort Meade, MD on 22 September 1972, shows the FSM was tried before a special court-martial on or about 13 September 1972, at Fort Meade, MD, and was convicted of being AWOL from on or about 21 August 1972 through on or about 28 August 1972. His sentence included one month confinement at hard labor. The sentence was approved and ordered to be duly executed on 22 September 1972; however, the one month confinement at hard labor was previously deferred on 13 September 1972. c. Court-martial charges were again preferred against the FSM on 22 January 1973 for violations of the UCMJ. The relevant Charge Sheet shows he was charged with absenting himself from his unit at the 5th AIT Brigade (Combat Support), Fort Dix, NJ, from on or about 29 November 1972 through on or about 22 January 1973. 5. The FSM consulted with legal counsel on 2 February 1973. 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 FSM 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, on 5 February 1973. 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; however, he elected not to submit any statements. 6. The FSM’s immediate commander subsequently recommended approval of his request for discharge under the provision of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial. 7. The separation authority approved the FSM's request for discharge, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed the FSM's reduction to the lowest enlisted grade and the issuance of a DD Form 258A (Undesirable Discharge Certificate). 8. The FSM was discharged on 5 March 1973. The DD Form 214 he was issued shows his service was characterized as under other than honorable conditions. His DD Form 214 further shows in: * Item 22b (Statement of Service – Total Active Service), he was credited with completing 5 months of service * Item 26a (Non-pay Periods Time Lost), 7AUG72 THRU 7AUG72, 21AUG72 THRU 27AUG72, 29NOV72 THRU 21JAN73, 22JAN73 THRU 4MAR73 * Item 30 (Remarks) includes the entry, "104 DAY LOST UNDER 10 USC 972 FROM: 7AUG72 THRU 7AUG72; 21AUG72 THRU 27AUG72; 29NOV72 THRU 21JAN73; 22JAN73 THRU 4MAR73." 9. The FSM 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. 10. The FSM enlisted in the Regular Army on 18 November 1974. In connection with his enlistment, he signed a DD Form 4 (Enlistment Contract – Armed Forces of the United States), wherein he acknowledged the following: If I secure my enlistment by means of any false statement, willful misrepresentation or concealment as to my qualifications for enlistment, I am liable to trial by court martial or discharge for fraudulent enlistment and that, if rejected because of any disqualification known and concealed by me, I will not be furnished return transportation to place of acceptance. I am of the legal age to enlist. I have never deserted from and I am not a member of the Armed Forces of the United States, the US Coast Guard or any Reserve component thereof: I have never been discharged from the Armed Forces or any type of civilian employment in the United States or any other country on account of disability or through sentence of either civilian or military court unless so indicated by me in item, 56. "Remarks" of this contract. I am not now drawing retired pay, a pension, disability allowance, or disability compensation from the government of the United States. 11. The FSM also signed a DA Form 3286 (Statement for Enlistment) on 18 November 1974, wherein in Part II – Statement of Law Violations and Previous Conditions, Item Number 2, (Have you ever been rejected for enlistment or induction in any of the Armed Forces to include failure of the mental examinations administered by any AFEES, or been discharged from previous service under other than honorable conditions, under Personnel Security Regulations, or by reason of unsuitability, or undesirable habits or traits of character, or for medical reasons?) [He answered no to all questions]. His signature certified that he had not intentionally concealed or misrepresented any information regarding prior enlistments in the Armed Forces. 12. The FSM’s service records show his immediate commander requested a mental status evaluation on 9 December 1974, as required for the submission of his recommendation for the FSM's administrative separation. The relevant report of mental status evaluation form shows the FSM received a mental status evaluation, in which the examining official determined he had no significant mental illness, was mentally responsible, could distinguish right from wrong, was able to adhere to right and wrong, and had the mental capacity to understand and participate in board proceedings. He met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness). 13. The FSM’s complete discharge packet in not available for review. However, documentation contained within his records show: a. The FSM's commander recommended him for elimination from military service on 11 December 1974, under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-5, due to his fraudulent enlistment. b. The FSM consulted with counsel and acknowledged that he had been advised on 13 December 1974 of the basis for his proposed discharge and its effect pursuant to Army Regulation 635-200, Chapter 14. c. The FSM's Battalion and Brigade Commanders recommended his separation from service on 18 December 1974. Both recommended he be discharged under the provisions of Army Regulation 635-200, Chapter 14. d. Consistent with the chain of command recommendations, the separation authority approved the FSM's discharge on 30 December 1974, by reason of fraudulent entry and directed he be issued a DD Form 257A (General Discharge Certificate). 14. The FSM was discharged on 13 January 1975. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, Chapter 14, and his service was characterized as under honorable conditions. Item 27 (Remarks) of his DD Form 214 contains the entry "Misconduct – fraudulent entry SPD JKG Chap 14 AR 635-200 RE-3" 15. The applicant provides the FSM’s DD Form 214, for the period ending 5 March 1973, their marriage certificate, and the FSM’s death certificate for consideration. 16. In reaching its determination, the Board should consider the applicant request 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 the applicant’s record, the circumstances of his prior discharge and the nature of his misconduct and whether to consider clemency in his case. The Board determined that his first discharge was not in error or unjust based on the frequency of his absences and that the character of service was appropriate for the second discharge for fraudulent entry. 2. After reviewing the application and all supporting documents, the Board determined that relief was not warranted. BOARD VOTE Member 1 Member 2 Member 3 : : : Full Grant : : : Partial Grant : : : Formal Hearing Grant :X :X :X Deny 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 three year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 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 states 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. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge was normally considered appropriate. d. Chapter 14 establishes policy and prescribes procedures for separating members for fraudulent entry cases and provides for the administrative disposition of enlisted personnel for misconduct by reason of fraudulent entry into the Service. (1) Paragraph 14-5 provides that an incident of fraudulent entry is the procurement of an enlistment, induction, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known, might have resulted in rejection. Any incident which meets the foregoing may be cause for discharge for fraudulent entry. (2) Paragraph 14-5c provides that when an individual who concealed his conviction by civil court of a felonious offense normally will not be considered for retention. Specific details of circumstances in a case may be obtained however by direct communication with the appropriate civil law enforcement agency, other than the FBI, by the commander concerned. When information is required from both sources, the inquiries will be dispatched concurrently. (3) Paragraph 14-12g directed that the fraudulent entry be voided when the individual is in a status of unauthorized absence or desertion, or absent in the hands of civil authorities. The orders issuing authority will issue special orders releasing the individual from custody and control of the Army. 3. 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.