ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 July 2019 DOCKET NUMBER: AR20190002073 APPLICANT REQUESTS: upgrade his under other than honorable conditions discharge to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Army Discharge Review Board (ADRB)) * Applicant's résumé 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 quit school at 17 years of age; his father worked for AAFES (Army and Air Force Exchange Service) and convinced him to join the Army because his father thought it would help shape him. a. The applicant acknowledges he was very immature and not ready to be away from home. His father had been in the Navy and served three tours in Vietnam; he was away from home most of the applicant's life. b. He went absent without leave (AWOL) several times; he would go home because he missed being there. His father would then bring him back and they would put him on restricted duty. After his third AWOL, they decided to discharge him. c. The applicant states he was not mature enough to recognize the consequences of his adverse discharge, or how it would affect the rest of his life. His father retired as a Navy lieutenant commander; the applicant carried the shame of his discharge for the rest of the time his father was alive. d. Since his discharge, he has grown up; he is 64 years old, married, has four children, and 6 grandchildren. The applicant worked in the public safety arena for 30 years; he was a salesman, then a sales manager, responsible for selling public safety equipment, software, and services to law enforcement and first-responders. He believes his post-service accomplishments warrant redemption from the blemish on his military records. On his father's deathbed, he promised his father he would try to get his character of service upgraded; he asks the Board to favorably consider his request. 3. The applicant provides a copy of his résumé, which shows the positions he has held, and the organizations within which he has worked from 1988 to present. 4. The applicant's service records show: a. He enlisted into the Regular Army on 10 May 1973 for a 3-year term; he was 18 years old. While participating in initial training, his chain of command promoted him to private (PV2)/E-2, effective 10 September 1973. On completion of initial training, orders assigned him to Fort Benning, GA; he arrived on 3 October 1973. b. On 5 December 1973, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for one specification of failing to obey his first sergeant's order to go on sick call, and two specifications for failing to go to his appointed place of duty at the time prescribed. The punishment included a 90-day suspended rank reduction to private (PV1)/E-1. c. On 19 February 1974, he accepted NJP again; he was charged with 15 specifications of failing to go to the company orderly room at the time prescribed. The applicant appealed and the imposing officer suspended part of the punishment (forfeiture of $181). d. On or about 28 February 1974, the applicant was reduced to PV1, effective 5 December 1974; his record does not include documentation showing the basis for this action. e. On 27 March 1974, the applicant appeared before a special court-martial for two specifications of AWOL (respectively: 24 to 28 January 1974 (4 days) and 5 to 15 February 1974 (10 days)); the military judge dismissed the charges, based on a defense counsel's motion asserting prior punishment. f. On 24 July 1974, the applicant accepted NJP for being AWOL from 1 to 15 July 1974 (14 days); he appealed but the imposing officer denied his appeal. g. On 21 November 1974, his Fort Benning commander preferred court-martial charges against him for: * Article 86 (Failure to go to Appointed Place of Duty/AWOL) – one specification of failing to go to his appointed place of duty at the time prescribe; two specifications of AWOL (respectively: 23 until 29 October 1974 (7 days); 4 until 29 November 1974 (16 days)) * Article 91 (Willful Disobedience of a Lawful Order from a Warrant Officer/Noncommissioned Officer (NCO)) – two specifications, disobeying: warrant officer's order to replace a tire; specialist five's order to report to the orderly room h. On 22 November 1974, 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 counsel had advised him of the implications of his request. He acknowledged he was guilty of the charge and submitted a statement in his own behalf: (1) He asked the separation authority to approve his request because he could not cope with Army life; he affirmed he would not make a good Soldier. Every time he got into trouble, they would take the time to prepare paperwork and spend money on him; the Army tried to rehabilitate him, but it did not work. He did not think it was fair for the Army to try to train him because he would not be reliable in the event of war. (2) He believed the approval of his chapter 10 request would help him because his brother-in-law had a job waiting for him. He asserted the Army did not pay enough for him to cover all of his bills; he noted he had been a private/E-1 since 28 February 1974. i. Except for his brigade commander (who recommended trial by court-martial), the applicant's chain of command supported the approval of his request; his company commander stated the applicant was an immature individual who could not adjust to the Army environment. The applicant's constant AWOLs, disrespect of authority, and inability to get to his place of duty on time all validated he had no rehabilitative value. j. On 17 December 1974, the separation authority approved the applicant's request and directed the issuance of an Undesirable Discharge Certificate; on 31 December 1974, the applicant was discharged accordingly under other than honorable conditions. His DD Form 214 showed he completed 1 year, 3 months, and 21 days of his 3-year enlistment, with 118 days of lost time. He was awarded or authorized the National Defense Service Medal and a marksmanship qualification badge. k. On 15 January 1980, he petitioned the ADRB, requesting an upgraded character of service. (1) He claimed he had not received a fair chance to straighten out his life and the Army did not help him with his drug problem. He contended, since his discharge, he had found God and had turned his life around. At the time of his application, he was employed as a corrections officer; he was totally ashamed of his behavior. He asserted his Army lawyer had really scared him by saying, if he remained in the Army and faced a court-martial, he would be going prison and receive a dishonorable discharge. In addition, the lawyer had claimed the applicant's undesirable discharge would change after 6 months to a general discharge under honorable conditions. He acknowledged he was to blame for his situation, and did not cherish the thought of telling his sons why he had an adverse discharge. He submitted four letters of support. (2) On 23 March 1981, the applicant appeared with counsel before the ADRB and had the opportunity to present testimony and evidence. In addition, the applicant's father testified in the applicant's behalf. After hearing testimony and reviewing evidence, the ADRB accepted the applicant's statement he was on drugs while on active duty, and that he had achieved significant post-service accomplishments. However, the ADRB rejected the remainder of his arguments, and indicated his post- service achievements were not sufficient to warrant an upgraded character of service. On 23 April 1981, the ADRB denied his request. 5. The applicant essentially acknowledges his misconduct, and highlights significant post-service accomplishments; he offers a copy of his résumé to support his claims. a. 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. b. In reaching its determination, the Board should also consider the statements and evidence the applicant provided in conjunction with his military service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined that there is sufficient evidence to grant relief. 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 post-service achievements to be compelling. The Board agreed that the applicant’s case warrants clemency in that the applicant’s post-service achievements have mitigated the misconduct resulting in the discharge characterization. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient 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 applicant’s DD Form 214, dated 31 December 1974, showing his characterization of service as “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 1-9e (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. b. 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 Article 91 (Willful Disobedience of a Warrant Officer's/NCO's Order), UCMJ, included a dishonorable discharge. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190002073 6 1