ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 June 2019 DOCKET NUMBER: AR20190002071 APPLICANT REQUESTS: in effect, upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 is not looking for any benefits; when he was drafted, he was married, with one child, and another one on the way. He believes he spent a total of 1 year and 4 months in the Army, and went overseas twice. He has been ashamed of himself ever since the Army offered him an "early out." He loves our country and regrets what he did; he was immature and stupid. 3. The applicant's records show: a. He enlisted into the Regular Army on 26 February 1971 for 2 years; he was 20 years old. After initial training, orders assigned him to Fort Riley, KS; he arrived on 19 May 1971. On 29 September 1971, his Fort Riley chain of command promoted him to private first class (PFC)/E-3. b. Orders reassigned him to Okinawa; he arrived on or about 29 January 1972. Effective 12 May 1972, the applicant's Okinawa unit reported a duty status change from ordinary leave to absent without leave (AWOL); on 13 June 1972, his unit dropped him from Army rolls. c. On 26 December 1972, civilian authority arrested the applicant and returned him to military control; effective 2 January 1973, orders reassigned him to the U.S. Army Personnel Control Facility (PCF) at Fort Riley. d. On 16 January 1973, the applicant's PCF commander preferred court-martial charges against him for AWOL from 12 May until 26 December 1972 (228 days). On 17 January 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 not to submit a statement in his own behalf. e. On 24 January 1973, the separation authority approved the applicant's request and directed his undesirable discharge under other than honorable conditions. Effective 24 January 1973, orders reduced him to private/E-1. f. On 30 January 1973, the PCF reported the applicant as AWOL; he remained AWOL until 2 February 1973 (4 days). On 2 February 1973, the applicant was discharged under other than honorable conditions; his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) showed he completed 1 year, 3 months and 15 days of his 2 year enlistment, with 232 days of lost time. He was awarded or authorized the National Defense Service Medal and two marksmanship qualification badges. g. On 13 May 1975, he petitioned the Army Discharge Review Board (ADRB) requesting an upgraded character of service. (1) He asserted the reason for his periods of AWOL was his family needed him at home. His wife was having a baby (their second child) and he felt he could make more money in the civilian sector. His eldest child needed medical attention; he took a copy of the hospital papers to Fort Riley to see if they would allow him to remain in the continental United States; this was rejected and they sent him overseas. (2) On 18 November 1975, the ADRB determined the applicant was properly discharged and denied his appeal. 4. The applicant contends, in effect, there were extenuating circumstances for his periods of AWOL; he regrets his actions and affirms his love of country. 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: After review of the application and all evidence, the Board found sufficient evidence to grant relief to upgrade the applicant’s discharge characterization to general under honorable conditions.. The Board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found the statement and evidence of honorable service to be compelling. The Board agreed that the applicant’s case warrants clemency in that the applicant served nearly 75% of his enlistment contract before going AWOL to see his wife and child. Therefore, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :x :x :x GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined there is sufficient evidence to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the discharge characterization of service on his DD Form 214 dated 2 February 1973 to “General under Honorable Conditions.” 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. AR 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies and procedures for the management of enlisted personnel. Paragraph 7-26b (3) (Approved for Discharge from Service with an Undesirable Discharge) stated Soldiers approved for separation with an undesirable discharge were required to be reduced to the lowest enlisted grade. 5. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190002071 4 1