ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 June 2019 DOCKET NUMBER: AR20190003368 APPLICANT REQUESTS: In effect, correction of DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his service is general, under honorable conditions, in lieu of under other than honorable conditions. He also requests an opportunity to make a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 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. The applicant states, in effect, he was with a sergeant and they took a car from Frankfurt Germany and drove to 1st Battalion, 40th Field Artillery, Hanau Germany. They had no intentions of stealing the car. They were against the Vietnam War. He believes the discharge under the provisions of chapter 10 was unjust, because he was a good Soldier. 3. On 8 September 1971, the applicant enlisted in the Regular Army for 3 years and he held military occupational specialty 13A (Red Eye Gunner). He served in the Germany from 27 March 1972 through 14 September 1973. 4. The applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on: * 1 August 1972, for being absent from his unit from 2300 to 2330 hours on 28 July 1972 * 23 April 1973, for being absent with leave (AWOL) from his unit in Hanau from 5 through 9 April 1973 5. On 14 July 1973, court-martial charges were preferred against the applicant for stealing a 1972 Volkswagen of a value of 11,000 deutschmarks, the property of a German National on approximately 30 May 1973. 6. On 26 July 1973, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel). He acknowledged he had been afforded the opportunity to speak with counsel prior to making his request. He indicated he was not submitting a statement in his own behalf. 7. On 2 August 1973, the applicant was found medically qualified for separation. 8. A Memorandum for Record from the Staff Judge Advocate, dated 10 September 1973, confirms the applicant's commander and intermediate commanders recommended the applicant's request for discharge be approved, on 7 August 1983, with an Undesirable Discharge Certificate. 9. On 10 September, 1973, the court-martial authority approved the applicant's voluntary request for discharge, directed that he be reduced to pay grade of E-1, and the issuance of an Undesirable Discharge Certificate. Accordingly on 17 September 1973, he was discharged. 10. His DD Form 214 shows he was discharged under the provisions of chapter 10, AR 635-200, for the good of the service with an undesirable discharge, in pay grade E-1. He completed 2 years and 6 days of net active service. He also had 4 days of lost time. 11. Chapter 10, AR 635-200, in effect at the time, stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. 12. The applicant contends he and a sergeant took a car in Frankfurt and drove it to Hanau Germany, but they had no intention of stealing the car. They were against the Vietnam War. He believes his discharge is unjust, because he was a good Soldier. 13. His service record shows he received two nonjudicial punishments for being AWOL from his unit in Germany twice prior to stealing a car in Germany and driving it from one city to another, as such, charges were preferred against him and he voluntarily requested discharge to avoid a trial by court-martial. 14. He completed 2 years of his 3 year service obligation. In reaching its determination, the Board can consider the applicant’s petition, his character references, and his service record in accordance with the published equity, injustice, or clemency guidance. 15. In regards to the applicant's request for a personal appearance, AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. The available evidence was sufficient to make a fair determination in the applicant’s case. 16. On 29 July 1981, the Army Discharge Review Board (ADRB) reviewed his discharge and found it proper and equitable. The ADRB unanimously voted to deny him a change in the character of service and the reason for discharge. 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 discussed his record of service, the frequency and nature of his misconduct, his statement regarding the charges and whether to apply clemency. The Board found insufficient mitigation for the misconduct and no additional information provided by the applicant in support of clemency. The Board determined that the character of service he received was not in error or unjust. The Board further determined that the records were sufficient to fairly adjudicate the case without a personal appearance. 2. After reviewing the application and all supporting documents, the Board determined that relief was not warranted. 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. 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. AR 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. Army Regulation 15-185 (ABCMR), paragraph 2-11, states applicants do not have a right to a formal hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. 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 based on 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. ABCMR Record of Proceedings (cont) AR20190003368 6 1