ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 18 July 2019 DOCKET NUMBER: AR20190002575 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to honorable and his narrative reason for separation as “Secretarial Authority”. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * VA Form 21-4138 (Statement in Support of Claim) * Research on multiple issues regarding hardship * Counsel Letter * Two letters of support FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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. Counsel provides and overview of information on the research of multiple issues regarding hardship discharges during the 1970’s and 1980’s to include but not limited to what a hardship discharge is, the commonality of hardship discharges during these decades and the stigmas or barriers to requesting a hardship discharge. Counsel submits a statement from the applicant, it states: a. He believes it was an honor to serve his country; he’s a proud veteran. He would like the board to consider his eligibility for benefits. His general discharge was due to his need to care for his family at a time of need. His father had a stroke and was unable to work; he was the main support for the family so when he came home he helped by making quick cash for them. It took them a little longer to get on their feet and he became AWOL trying to assist. b. He finished his three year tour with one year overseas. He also served three months bad time for going AWOL and had to forfeit pay during those three months. He believes his discharge should be honorable because he had no choice but to stay and help his family. The applicant believes, he, payed for the incident by doing the three months bad time. His First Sergeant told him that he would receive a general discharge under honorable conditions. 3. On 8 November 1973, at the age of 17 with consent from his parents, the applicant enlisted in the Regular Army for a period of 3 years. 4. On 6 June 1974, the applicant received non-judicial punishment (NJP) for failing to go at the prescribed time to his appointed place of duty on or about 17 May 1974, 24 May 1974, and again on 4 June 1974. 5. On 28 June 1974, he received NJP for failing to report for duty after a medical appointment on 25 June 1974; falsifying a sick slip; feigning illness or physical disability. 6. On 4 December 1975, the applicant received a letter of reprimand from his commander for being absent without authority, and conduct unbecoming of a Soldier. The commander informed him, the conduct would not be tolerated and should an incident of that nature occur again, he would be forced to consider action to bar him to reenlist or separate the applicant with a chapter 13. 7. On 11 August 1976, he underwent a medical examination and was deemed qualified for a chapter 13 separation. 8. A Bar to Enlistment/Reenlistment Certificate dated 20 August 1976, shows his commander initiated a bar to reenlistment. The applicant acknowledged the bar and elected not to submit a statement on his behalf. The command recommended he be barred from reenlistment for unsatisfactory conduct, for specifically: * Receiving non-judicial punishment for being absent without leave (AWOL) on two occasions from 4 June to 7 July 1975 and 29 December 1975 to 5 January 1976, as well as, disorderly conduct in formation on 2 June 1976 * Dishonored checks written to the Post Exchange on 6 and 18 May 1976 for a total of $13.00 * Indebtedness to two public business on 16 March and 24 June 1976 totaling $811.04 * Substandard appearance and a letter of reprimand for being absent from duty on 4 December 1975 9. On 2 November 1976, the appropriate authority approved the Bar to Reenlistment and instructed the correspondence would be placed permanently in his personnel records; the remark, “Not recommended for further service”, will be entered on his qualification record; the bar would be reviewed by the unit commander and would be considered for removal if the applicant had proven himself worthy of retention. 10. On 10 January 1977, the applicant underwent a Special Court-Martial (SCM) and was charged for being AWOL from on or about 20 October 1976 to 23 November 1976. 11. On 19 January 1977, the charges were dismissed, with no further views toward prosecution, by the convening authority. 12. On 24 January 1977, discharge orders were published with an effective date of discharge as 24 January 1977 with a discharge as other than honorable. The applicant requested and was provided a separate document explaining the narrative reason for his discharge which was due to administrative discharge-conduct triable by court- martial. His reenlistment code was RE-4 which indicated he was not eligible for reenlistment. His record is void of a separation packet; however his DD Form 214 shows: * Effective Date: 24 January 1977 * Net Active Service This Period: 3 years and 3 days * Authority and Reason: Chap 10, AR 635-200 * Type of Separation: Discharge * Character of Service: Under Other Than Honorable Conditions * Foreign and/or sea service this period: 1 year * Lost Time: 75 days 13. Army Regulation 635-200 states: a. Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. b. Paragraph 5-3 states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders. 14. A review of the applicants record shows the highest grade he completed prior to enlistment was 8th grade; the highest rank he held was Specialist (SPC); he completed 8 weeks at the Chemical Operations Apprentice Course in 1974; qualified expert on his assigned M-16 rifle; he served overseas, Johnston Island for 1 year; and he was retained on active duty for three days for the convenience of the government. His records also show he was AWOL on four separate occasions. The applicant provides two statements of support: a. His brother shares in part during the applicant’s time in the Army their father had become very sick and he was the only support for the family. He would come home and work to make additional money along with what he sent. The family did not know he was AWOL and if his father was aware, he wouldn’t have allowed the applicant to do that. Their father as well as all of their uncles were veterans. b. The Administrator from the St. Augustine’s and Gabriel Parish wrote a letter on behalf of the applicant. They stated the applicant is a member of the Parish and is in good standing; he attends Mass on Sundays and contributes to all the weekly gatherings. 15. The applicant requests an upgrade so that he may receive benefits. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits. 16. 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 record of service, the frequency and nature of his misconduct, the punishments he received, the bar to reenlistment and whether to apply clemency. The Board considered his statement and found mitigation for his misconduct and considered the post-service documents and letters he provided and determined that the character of service he received was too harsh and clemency was warranted. The Board determined, based on the preponderance of evidence, that the reason for his separation was unjust. 2. After reviewing the application and all supporting documents, the Board determined that partial 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: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 for the period of service ending 24 January 1977 to show in item 24 (Character of Service ) “General, under honorable conditions”. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing his character of service to “Honorable” and changing the narrative reason for separation to “Secretarial Authority”. 7/31/2019 X CHAIRPERSON 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 three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (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. 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. 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. Paragraph 5-3 states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders. d. A Chapter 10 (Discharge in Lieu of Trail by Court Martial) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. (1) An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. (2) 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. 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. 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, 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. 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.