ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 July 2019 DOCKET NUMBER: AR20190003675 APPLICANT REQUESTS: The applicant requests an upgrade of his characterization of service from under other than honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement * DD Form 214 (Report of Separation from Active Duty) 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 his discharge was unfair, improper and or inequitable. There was no Board hearing and no prescribed procedures were followed to include counseling, legal representation, and or rehabilitative efforts. Outdated rules were inappropriately applied to his character of service. The U.S. Congress stipulated in 1944 that severe conduct would lead to court martial and dishonorable discharges would disqualify veterans from basic VA [Department of Veterans Affairs] care. Additionally, he states, in effect, he is: a. Requesting clemency from the VA. b. Writing in response to a letter he received, dated 2 January 2019, indicating that he may be eligible for healthcare services from the VA, based on a law that was recently passed by Congress. c. His under other than honorable conditions discharge has been a source of shame. The psychological and sociological implications are undesirable and damming to a man's character. His mistake has haunted him forever affecting the respect of his family, his standing in the community, and impeding his effort to regain a productive and meaningful role in society. He has encountered discrimination, and less opportunity for civilian employment given the loss of veterans' benefits. It is a lifetime stigma which adversely affects his reputation and standing in the community causing embarrassment and a loss of self-esteem. It is for this reason he is eager to rectify the status of his discharge, if possible, so that he can live out the remaining years of his life with a sense that he served his country as honorably as his circumstances allowed. c. When he was discharged in 1975, he was an inexperienced minority youth operating under the challenge of a language barrier. The misunderstanding of information has made it clear that this discharge was unfair, improper, and or inequitable. Outdated rules were inappropriately applied to his character of service. 3. On 31 July 1974, the applicant enlisted in the Regular Army for 2 years. He held military occupational specialty 71T (Equipment Maintenance Clerk). On 5 December 1974, he was assigned to Fort Stewart, GA. 4. On 5 May 1975, he left his unit in an absent without leave (AWOL) status. On 6 June 1975, he was dropped from Army rolls. On 4 September 1975, he returned to military control at the U.S. Army Personnel Control Facility, Fort Leonard Wood, MO. 5. A Report of medical Examination, dated 9 September 1975, shows he was determined qualified for separation. 6. On 10 September 1975, court-martial charges were preferred against him for the above period of AWOL. 7. On 10 September 1975, the applicant consulted with legal counsel. Counsel advised him of the basis for the contemplated trial by court-martial, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he 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 that: * he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person * he acknowledged that by submitting this request, he was guilty of the charges against him or of a lesser included offense which also authorizes the imposition of a bad conduct or a dishonorable discharge * he acknowledged he understood that if his discharge request were approved he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the VA * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * In his request for discharge, he indicated he desired to submit a statement in his own behalf. * On the same date he wrote in his statement: “Dear Sir, I went AWOL because I do not like the Army. I do not want to stay in the Army anymore. I have difficulty understanding the language, because I was born and raised in Puerto Rico” 8. On 16 September 1975, the applicant's immediate and intermediate commanders recommended approval of the applicant’s voluntary request for discharge with the issuance of an Undesirable Discharge Certificate. 9. On 18 September 1975, the separation authority approved the discharge action and ordered the applicant reduced to the lowest enlisted pay grade, if applicable, and that he be discharged under the provisions of chapter 10, AR 635-200, with an Undesirable Discharge Certificate. Accordingly, the applicant was discharged on 22 September 1975. 10. His DD Form 214 shows he was discharged under the provisions of chapter 10, AR 635-200 with an under other than honorable conditions characterization of service. He was issued an Undesirable Discharge Certificate. He completed 9 months and 23 days of active service and he had 122 days of lost time. 11. The applicant petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-years statute of limitations and his request was denied on 20 November 1981. 12. The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10, AR 635-200 are voluntary requests for discharge in lieu of trial by court- martial. He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial to avoid a hearing or a possible felony conviction. 13. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. His administrative separation was accomplished in compliance with applicable regulations in affect at the time. 14. The applicant makes several contentions regarding the VA, which operates within its own laws and policies and does not fall within the purview of this Board. If he believes he may be eligible for VA benefits, based on recent laws passed by Congress or if he desires that the VA consider his discharge as honorable he should contact the VA. 15. The applicant completed almost 10 months of his 2 year enlistment obligation. In reaching its determination, the Board can consider the applicant’s petition, his character references, and his service record, and the fact that he may have had the challenge of a language barrier, in accordance with the published equity, injustice, or clemency guidance. 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 statement, his record of service, the nature and length of his misconduct and whether to apply clemency. The Board found no mitigating factors and the applicant provided no post-service accomplishments or letters of support for consideration by the Board. The Board determined, based on the preponderance of evidence, that the character of service the applicant received was not in error or unjust. 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 (Personnel Separations – Enlisted Personnel) sets forth the policy for administrative separation of enlisted personnel. a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. However, an undesirable discharge was considered appropriate at the time the applicant was discharged. b. Paragraph 3-7a states that 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. c. Paragraph 3-7b states that 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. 3. 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) AR20190003675 6 1