ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 6 June 2019 DOCKET NUMBER: AR20190002972 APPLICANT REQUESTS: * Reconsideration of his earlier request to correct his records to show only one period of absence without leave (AWOL) * As a new request, upgrade his under other than honorable conditions character of service to general under honorable conditions APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Army Discharge Review Board (ADRB)) * DD Form 214 (Report of Separation from Active Duty) * Extracts from two DA Forms 20 (Enlisted Qualification Record) 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 AR20090004721 on 1 September 2009. 2. The applicant states he feels he was wrongfully discharged. The military was saying he would have to serve without pay; he could not function without an income, so he accepted the discharge. He now asks for his character of service to be upgraded. He also asserts his records inaccurately show two periods of AWOL; he contends, in effect, he was actually AWOL for one period only, and was under military control from 21 January 1974 through 7 May 1974. 3. The applicant's service records show: a. He enlisted into the Regular Army on 29 August 1972 for a 2-year term. While participating in advanced individual training, his chain of command promoted him to private (PV2)/E-2. On the completion of his initial training, orders assigned him to Germany; he arrived on 18 January 1973. b. On 19 February 1973, while performing guard duty, the applicant accidently shot himself in the foot as he entered a jeep. He was hospitalized and, on 24 March 1973, orders transferred him to Fort Campbell, KY for continuation of his care. c. On 11 April 1973, Headquarters, VII Corps determined the applicant's injury was incurred in the line of duty. On 22 May 1973, orders reassigned him from Fort Campbell to Fort Sill, OK; he arrived 13 June 1973. d. On 2 October 1973, he departed his Fort Sill unit in an AWOL status; his unit dropped him from Army rolls on 30 October 1973. On 10 January 1974, civil authority arrested the applicant and returned him to military control; orders reassigned him to the Fort Campbell Personnel Control Facility (PCF). e. On 8 February 1974, the PCF reported him AWOL and dropped him from Army rolls. That same date, the PCF initiated a suspension of favorable personnel actions. On 15 February 1974, the applicant's PCF commander notified the U.S. Enlisted Records Center at Fort Benjamin Harrison, IN, of the applicant's AWOL/DFR effective 8 February 1974. On 19 February 1974, his PCF commander wrote a letter to the applicant's spouse indicating the applicant was AWOL; he encouraged the spouse to urge her husband to return. f. Special Orders number 76, dated 9 April 1974, indicated, on 4 April 1974, the applicant returned to military control by surrendering himself to the Fort Campbell military police. g. A document titled, "Defense Counsel Questionnaire and Sworn Statement," dated 10 April 1974, contains handwritten entries, along with the applicant's signature. (1) The handwritten entries affirm the following: * His first AWOL was for 103 days; his second was 60 days * The dates of his AWOL were from 2 October 1973 to 8 January 1974, and from 2 February to 5 April 1974 * He was married with a 4-month-old child (2) The applicant wrote he wanted out of the Army because he was tired of staying away from his wife and child. He could not afford to have his wife and child live with him as long as he was in the Army; he had too many bills to pay. He could not see any future by remaining in the Army, so he wanted out. h. On 22 April 1974, his PCF commander preferred court-martial charges against him for two periods of AWOL: 2 October 1973 until 10 January 1974 (100 days), and 8 February until 4 April 1974 (55 days). That same date, 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 counsel had advised him of the implications of his request; he acknowledged he was guilty of the charge. He indicated he was submitting a statement in his own behalf, but this statement is not available in his service record. i. On 26 April 1974, the separation authority approved the applicant's request and directed his undesirable discharge under other than honorable conditions; he also ordered the applicant's reduction from PV2/E-2 to private/E-1. On 7 May 1974, the applicant was discharged accordingly; his DD Form 214 shows he completed 1 year, 3 months, and 5 days of his 2-year enlistment contract, with 155 days of lost time; no awards or decorations were listed. j. The applicant's service record contains two DA Forms 20 (respectively dated 5 September 1972 and 24 July 1973); both reflect the award of the National Defense Service Medal and an Expert Marksmanship Qualification Badge with Rifle Bar (M-16). The DA Form 20, dated 24 July 1973, reflects two periods of AWOL: 2 October 1973 to 9 January 1974 and 8 February to 3 April 1974. k. On 12 August 1976, the applicant petitioned the ADRB, requesting an upgrade of his discharge. On 4 March 1977, the ADRB denied his appeal. l. On 10 August 1986, the applicant again applied to the ADRB for an upgraded character of service. (1) He provided a self-authored statement, in which he stated, in effect, during his 20 months in the service, he became an alcoholic. One weekend he came home and did not return; they came and got him in a few days, and transported him to Fort Campbell. He was in the Fort Campbell stockade for about 90 days, after which they gave him an undesirable discharge. He went before two officers; there was only one side to the story, their side. After his discharge, he spent the next 6 years in and out of hospitals and alcoholic wards. He finally quit drinking in 1980 and has been trying to get his life together ever since. He realized his two children would not understand why he got an undesirable discharge; he felt like he deserved an honorable discharge and believed they did not give him a fair deal. (2) On 27 April 1987, the ADRB conducted a records review and determined the applicant's discharge was proper and equitable; the ADRB denied his petition. m. On 9 March 2009, he applied to the ABCMR requesting a records correction to show only one AWOL period, vice two. The Board denied his request. 4. The applicant asserts he was wrongly discharged and had only one period of AWOL. His service record, supported by multiple documents, reflects two periods (100 days and 55 days, respectively); barring evidence to the contrary, the Board presumes administrative regularity (i.e., actions taken by the Army were completed correctly and in accordance with regulations in effect at the time). Per the Manual for Courts-Martial that was in effect at the time, the maximum punishment for a period of AWOL over 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. After reviewing the application and all supporting documents, the Board found the relief was not warranted to amend the Army Board for Correction of Military Records (ABCMR) decision in Docket Number AR20090004721 on 1 September 2009. The board found that the preponderance of evidence indicates two periods of AWOL: On 2 October 1973, the applicant departed his Fort Sill unit in an AWOL status; his unit dropped him from Army rolls on 30 October 1973. On 10 January 1974, civil authority arrested the applicant and returned him to military control; orders reassigned him to the Fort Campbell Personnel Control Facility (PCF). On 8 February 1974, the PCF reported him AWOL and dropped him from Army rolls. The service record copy of DA Form 20, dated 24 July 1973, reflects two periods of AWOL: 2 October 1973 to 9 January 1974 and 8 February to 3 April 1974. And On 22 April 1974, his PCF commander preferred court-martial charges against him for two periods of AWOL: 2 October 1973 until 10 January 1974 (100 days), and 8 February until 4 April 1974 (55 days). Furthermore, 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 creditable service, no wartime service and insufficient evidence of mitigating circumstances for the misconduct. Neither did the Board find sufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. The Board agreed that the applicant’s discharge characterization is appropriate and found insufficient evidence to prove the number of AWOLs recorded is erroneous. 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): 1. AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all decorations, service medals, campaign credits, and badges awarded or authorized. 2. As a result, amend his DD Form 214, ending 7 May 1974 by adding the following awards: * National Defense Service Medal * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) REFERENCES: 1. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-9d (Honorable Discharge). An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. A Soldier's service could be characterized as honorable if he/she received at least "Good" for conduct, and at least "Fair" for efficiency. In addition, the Soldier could not have one general court-martial or 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. Commanders were to ensure the request for discharge was a personal decision, free of coercion, and that the Soldier was given a reasonable amount of time to consult with counsel. Once the Soldier made the decision to request discharge, he/she had to put it in writing and counsel was required to sign as a witness. 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) AR20190002972 6 1