ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 July 2019 DOCKET NUMBER: AR20190004149 APPLICANT REQUESTS: Her deceased brother's under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), with self-authored statement dated 7 May 2018 * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 15 January 1973 * DA Form 20 (Enlisted Qualification Record) * DA Form 20B (Insert Sheet to DA Form 20 – Record of Court-Martial Conviction) * DD Form 214 (Report of Separation from Active Duty), for the period ending 28 December 1973 * Response letter from the National Personnel Records Center (NPRC), St. Louis, MO, dated 30 August 2016 * Counsel’s Letter of Closure of Discharge Upgrade Case, dated 18 October 2016 * State of Maryland, Department of Health and Mental Hygiene – Division of Vital Records, Certificate of Death, dated 2 May 2018 * two page obituary, dated 14 May 2018 * Stewart Funeral Home, statement and approval of expenses of services and merchandise, dated in May 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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, her brother’s (now a deceased former service member (FSM)) court-martial resulted in his rank and grade being reduced to private/E-1, and his forfeiture of $200 pay for one month. She is requesting his character of service be upgraded because he already bore the consequences of his actions. She believes he paid for his actions and a UOTHC character of service punishes him for the rest of his life and prevents him from getting benefits. 3. The FSM enlisted in the Regular Army on 15 January 1973. 4. Summary Court-Martial Order Number 48, issued by 1st Battalion, 2nd Infantry Regiment, 1st Infantry Division (Mechanized), Fort Riley, KS on 13 August 1973, shows the FSM was tried before a summary court-martial on or about 13 August 1973, at Fort Riley, KS, and was convicted of being absent without leave (AWOL) from on or about 2 July 1973 through on or about 15 July 1973. His sentence included his reduction in rank/grade to private/E-1, and his forfeiture of $200 pay for one month. The sentence was approved and ordered duly executed on 13 August 1973. 5. Court-martial charges were preferred against the FSM on 11 September 1973. The relevant DD Form 458 (Charge Sheet) shows he was charged with the following violations of the Uniformed Code of Military Justice (UCMJ): * being AWOL, from on or about 1200 hours, 4 September 1973 through on or about 0700 hours, 10 September 1973 * being disrespectful to his superior commissioned officer, with marked disdain, indifference and insolence, on or about 0910 hours, 21 August 1973 * willfully disobeying a lawful order from his superior noncommissioned officer, on or about 0830 hours, 21 August 1973 6. Court-martial charges were again preferred against the FSM on 17 October 1973. The relevant DD Form 458 (Charge Sheet) shows he was charged with 3 specifications of violating Article 91 of the UCMJ, on or about 16 October 1973, specifically as follows: * 2 specifications of willfully disobeying a lawful order from his superior noncommissioned officer; * 1 specification of being disrespectful in language to his superior noncommissioned officer while in the execution of his duties 7. The FSM consulted with legal counsel on 1 November 1973. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the FSM voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-martial, on 1 November 1973. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his own behalf; however, he submitted the following statement: I, respectfully request a general discharge for the following reasons: 1. I’m helping my father with payments for the house that they just brought, and we have to get 40.00 dollars within the next 3 or 4 months. The Army is not paying me enough money so I can do my best with this payment. 2. I have 7 sisters and brothers, and I’m the oldest at 18. I believe that it would be better for me and the Army if I was discharged. I also have personal bills that I have been able to pay since in the Army. I must not be held responsible for my actions while I’m under such emotional problems. I don’t feel that being in the Army any longer, can help my family problems or my emotional feeling at this time. I would be glad to accept any discharge I could get. 8. The FSM’s immediate commander recommended approval of his request for discharge on 8 November 1973, under the provision of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of trial by court-martial. His Battalion commander subsequently recommended approval of his request on 12 November 1973. 9. The 1st Infantry Division Adjutant reviewed the applicants request for discharge on 12 November 1973, and in effect made the following statement: a. [The FSM] enlisted on 15 January 1973 for a period of four years, for a cash bonus in [military occupational specialty] MOS 11B and station of choice, Fort Riley, Kansas. The bonus was invested in his father’s cement business. b. After completing initial entry, he was assigned to Fort Riley, KS on 7 June 1973. On 2 July 1973, he departed AWOL, and surrendered to civilian authorities in Topeka, Kansas on 15 July 1973. He was returned to duty on 25 July 1973 and given a summary court-martial. He was sentenced to a rank/grade reduction to Private E-1 and forfeiture of $200.00 for one month. On 4 September 1973, he was again reported AWOL and subsequently dropped from the rolls on 4 September 1973. He was returned to his unit on 10 September 1973. On 11 September 1973, he was recommended for trial by a special court-martial for this offense, as well as, failure to repair, disrespect to a superior commissioned officer and disrespect to a superior noncommissioned officer. On 16 October 1973, he was placed in pretrial confinement at the Fort Riley, KS Post Stockade, and additional charges [disobeying lawful order and disrespectful language] were forwarded. 10. The FSM’s Brigade commander recommended approval of his discharge request on 14 November 1973. 11. The separation authority approved the FSM's request for discharge on 13 December 1973, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial and directed the FSM's be issued a DD Form 258A (Undesirable Discharge Certificate). 12. The FSM was discharged on 28 December 1973, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. His DD Form 214 shows in: * Item 18c (Record of Service – Total Active Service), he was credited with completing 9 months, and 10 days of service * Item 21 (Time Lost), "94 Days" * Item 27 (Remarks) includes the entry, "Ref Item 21 – 94 Days lost under Title 10, United States Code, Section 972" 13. The FSM was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 14. The FSM applied to the Army Discharge Review Board (ADRB) for an upgrade of his UOTHC discharge. After careful consideration, the ADRB denied his request on 5 July 1977. 15. The applicant provides the following items for consideration: * an excerpt of the FSM’s service records, including his DD Form 4, DA Forms 20 and 20B, and DD Form 214 for the period ending 28 December 1973 * a response letter from the NPRC, St. Louis, MO, dated 30 August 2016 * counsel’s letter of conclusion of representation * the FSM’s death certificate, obituary, and a statement of expenses from Stewart Funeral Home 16. The Board should consider the applicant's statement and provided evidence in accordance with the published equity, injustice, or clemency determination 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, the frequency and nature of the Soldier’s misconduct and his statement at the time and whether to apply clemency. The Board found insufficient mitigating factors in the record for the misconduct and the applicant provided no post-service accomplishments or letters of recommendation in support of clemency. 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 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. Paragraph 3-7a states 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. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge was normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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) AR20190004149 6 1