ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 July 2019 DOCKET NUMBER: AR20190001933 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for Army Discharge Review Board (ADRB)). FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 he did not understand what he was doing; he was young and stupid. He did not want to leave the Army. 3. The applicant's service records show: a. He enlisted into the Regular Army on 10 June 1975 for a 3-year term; he was 18 years old. While participating in basic combat training, his chain of command promoted him to private (PV2)/E-2, effective 7 August 1975. After completing advanced individual training for military occupational specialty 67N (Helicopter Repairman), orders reassigned him to Fort Knox, KY; he arrived on 5 December 1975. b. On 18 February 1976, his Fort Knox unit changed his duty status from present for duty to absent without leave (AWOL); on 11 March 1976, he surrendered himself in the company area and returned to military control. c. On 15 March 1976, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL for a period of 22 days, from 18 February until 12 March 1976 (sic, should have been 11 March 1976). Punishment included reduction to private/E-1. d. On 6 May 1976, his Fort Knox unit revised his duty status from ordinary leave to AWOL, and dropped him from Army rolls on 4 June 1976. e. On 7 August 1976, the applicant surrendered himself to military authority at Fort Knox; orders reassigned him to the U.S. Army Personnel Control Facility (PCF), also located at Fort Knox. A letter from the Federal Bureau of Investigation (FBI), dated 9 August 1976, stated the reason the applicant surrendered himself was because of intensive FBI investigative efforts. f. On 17 August 1976, the applicant's PCF commander preferred court-martial charges against him for AWOL from 6 May until 7 August 1976 (93 days). On 18 August 1976, after consulting with counsel, the applicant requested discharge 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 further acknowledged he was guilty of the charge. He elected to submit the following statement in his own behalf: (1) He enlisted into the Army to improve his status, but being in the Army changed his whole way of life. Persons of higher rank kept him from advancing, which caused him to give up. He had family problems he was never able to resolve, and when he tried to solve them the Army way, they only got worse. (2) He lost a child trying to do things the Army way; he felt he would be better off if he was out of the Army. He felt he was treated very unjustly, and, if his request for separation was not approved, he would have to go further. g. The applicant's PCF commander indorsed the applicant's request, and stated, based on the applicant's record, any rehabilitative efforts made would, in effect, be wasted. h. On 25 August 1976, the PCF placed the applicant on excess leave, pending the result of his chapter 10 request; he was required to return on 7 September 1976. i. On 26 August 1976, the separation authority approved the applicant's chapter 10 request and directed his separation with an Undesirable Discharge Certificate. j. DA Form 4187 (Personnel Action), dated 8 September 1976, shows the applicant's duty status changed from excess leave to AWOL, effective 8 September 1976. k. On 8 September 1976, the applicant was separated with an undesirable discharge under other than honorable conditions; his DD Form 214 (Report of Separation from Active Duty) shows he completed 11 months and 4 days of his 3-year enlistment, with 116 days of lost time. He was awarded or authorized two marksmanship qualification badges. l. On 5 February 1981, he petitioned the ADRB, requesting an upgraded character of service; he stated he was seeking to better his life. He wanted to go to school and learn a trade; if possible, he wanted to return to the Army a better man. On 29 June 1982, the ADRB conducted a records review and determined his discharge was equitable and proper; on 9 July 1982, the ADRB denied his request. 4. The applicant contends he really wanted to remain in the Army and, in effect, regrets his actions. Per the Manual for Courts-Martial that was in effect at the time, the maximum punishment for AWOL in excess of 30 days included a punitive discharge; Soldiers charged with UCMJ violations, for which a punitive discharge was a punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and offered in-lieu of trial by court-martial. 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: 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 considered the applicant’s service record, the frequency and nature of his misconduct, his personal statement and whether to apply clemency. The Board found no mitigating factors and the applicant provided none; the applicant provided no evidence of post-service accomplishments or letters of reference in support of a clemency determination. The Board determined there was insufficient evidence to apply clemency and that the character of service the applicant received upon discharge was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found 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. 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 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. 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. 3. The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments showed a dishonorable discharge was a punishment allowed for convictions of Article 86 (AWOL for more than 30 days), UCMJ. 4. 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 might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. ABCMR Record of Proceedings (cont) AR20190001933 2 1