ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 June 2019 DOCKET NUMBER: AR20190002211 APPLICANT REQUESTS: reconsideration of his earlier request to upgrade his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Army Discharge Review Board) * Board of Veterans' Appeals Decision * DD Form 214 (Report of Separation from Active Duty) * Signature page for letter from the National Personnel Records Center 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 AR20160013836 on 13 December 2016. 2. The applicant states, in effect, he has numerous medical conditions which have caused him tremendous pain; he was not given any behavioral health treatment. He believes the Army erred by giving him an under other than honorable conditions discharge; because of this character of service, he is unable to receive treatment from the Department of Veterans Affairs (VA) for his depression. 3. The applicant provides a decision by the Board of Veterans Appeals, dated 27July 2018, which essentially states he is entitled to service connection for colon problems. While the evidence of record does not satisfactorily prove or disprove the applicant's colon problems are related to symptoms he showed while in the service, the board gave the applicant the benefit of the doubt. 4. The applicant's service records show: a. He enlisted into the Regular Army on 6 November 1974 for a 3-year term; he was 18 years of age. Following initial training, orders assigned him to Fort Polk, LA; he arrived on 3 June 1975. b. On 30 June 1975, he departed his Fort Polk unit in an absent without leave (AWOL) status; his unit dropped him from Army rolls on 29 July 1975. On 25 August 1975, the applicant surrendered himself to the military police at Fort Rucker, AL; effective 25 August 1975, orders reassigned him to the U.S. Army Personnel Control Facility (PCF) at Fort Gordon, GA. c. The applicant's complete separation packet is not available for review, however, his record includes the following relevant documents: (1) An indorsement, dated 16 September 1975, by the applicant's PCF commander; the commander recommends approval of the applicant's request for separation under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). (a) The commander also indicates no prior court-martial convictions and no nonjudicial punishments under Article 15, Uniform Code of Military Justice. (b) The applicant was interviewed by the unit's executive officer and offered no statements on his own behalf; he affirmed his desire to be discharged, and indicated he understood the meaning and effects of an undesirable discharge under other than honorable conditions. (2) Separation orders, date 9 October 1975, showing his reassignment from the PCF to the U.S. Army Transfer Point, effective 16 October 1975. The orders also listed the type of discharge as under other than honorable conditions. (3) DD Form 214, which states, on 16 October 1975, he was discharged under other than honorable conditions. The DD Form 214 further shows he completed 9 months and 7 days of his 3-year enlistment contract; he had lost time from 20 June to 1 September 1975 (64 days), and was awarded or authorized a marksmanship qualification badge. The separation authority was chapter 10, AR 635-200. d. On 22 July 2016, the applicant applied to the ABCMR for an upgraded character of service. He argued, in effect, the only adverse incident in his service records was a 64-day AWOL. He felt his separation was unjust because he was a scared teenager who was not disobedient; he was just afraid for his life. He was not in violation of the offenses listed in Department of Veterans Affairs Code of Federal Regulations. (1) The applicant provided a self-authored statement in which he described entering the Army and excelling in basic combat training. After arriving at his Fort Polk duty station, some Soldiers returning from Vietnam started harassing him; they got into a fight. After the fight, these Soldiers said they knew where he was staying, and had experience killing people. Out of fear, he left Fort Polk and went home to Alabama. He eventually turned himself in and was discharged. (2) On 13 December 2016, based on a review of the available record and the evidence submitted by the applicant, the Board denied his request. 5. Because the applicant's complete separation packet is not available, the Board cannot fully determine the specific circumstance(s) that led to his discharge. However, the Board presumes the applicant's leadership completed his separation properly, based on his record copy DD Form 214. 6. The applicant asserts the Army wrongly discharged him; as a result, he is unable to receive behavioral health treatment from the VA. The evidence of record indicates he was AWOL for more than 30 days and requested discharge under chapter 10, AR 635-200. 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. 7. 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: 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 did not find sufficient evidence to amend the decision of the ABCMR set forth in Docket Number AR20160013836 on 13 December 2016. 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 did not find any evidence of error, injustice, or inequity; the applicant had limited honorable service, no meritorious personal awards, no wartime service and insufficient evidence of mitigating circumstances for the misconduct. Furthermore, the applicant provided no evidence of post-service honorable conduct that might have mitigated the discharge characterization. The Board agreed that the applicant’s discharge characterization is 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. 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. 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. 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. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. 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) AR20190002211 5 1