IN THE CASE OF: BOARD DATE: 1 July 2019 DOCKET NUMBER: AR20190004356 APPLICANT REQUESTS: The applicant requests an upgrade of his undesirable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) * DD Form 256A (Honorable Discharge) * DD Form 258A (Undesirable Discharge) 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: a. He was severely injured in an accident in 1973, while on active duty. He was thrown from a 2.5 ton truck and injured his back, broke his ankle, and had a concussion. He was treated at the Fort Benning Martin Army Hospital. He needed further long term treatment. Instead the Army sent him to Turkey. While there he could not get any medical treatment. b. Because of his injuries, he was not able to get a top secret clearance, and as a result of this, his unit put him in odd jobs. He was not able to perform his real duties. So out of desperation, he went on leave to see his family and while home he began to finally get medical treatment. He did not go back to Turkey. When his absence without leave went over a certain amount of days the Army discharged him under other than honorable conditions. His injuries have continued to get worse and he tried to obtain help through the Department of Veterans Affairs (VA), but he cannot get help without an honorable discharge. 3. On 19 November 1971, the applicant enlisted in the Regular Army for a period of 3 years. 4. On 9 June 1972, a Statement of Medical Examination and Duty Status indicates the applicant suffered a head injury in the line of duty through no fault of his own. It also states he was a passenger in a 2.5 ton truck when it started to slide and turned over on its side injuring several passengers. 5. On 20 September 1973, the applicant was honorably discharged from the Regular Army in order to immediately reenlist in the Regular Army for 6 years on 21 September 1973. 6. His service record shows arrived in Turkey from on or about 17 January 1974. 7. On 4 February 1974, the applicant’s commander notified him, in pertinent part: a. He had temporarily suspended his assignment to a nuclear duty position. The action was purely administrative and was not adverse or punitive. The applicant gave many indications of a poor attitude and lack of motivation to any military duties and he had a police record which may have been disqualifying for further service. b. Until the applicant’s attitude and motivation improved, and until the effect of his record could be clarified, he could not be assigned to duties appropriate to his military occupational specialty in the unit. The applicant was assigned to the most practical and satisfying duties available in the unit. 8. On 13 February 1974, his commander notified Headquarters, Department of the Army, Washington, D.C., the applicant reported during a National Agency Check initiation interview that he was “convicted of grand larceny in Scottsboro, AL, and placed on 3 year probation” in 1969. There was no indication on the applicant’s enlistment documentation to this effect, and fraudulent entry was a distinct possibility which had not been dispelled by interview after appraisal of rights under the provisions of Article 31, Uniformed Code of Military Justice. His commander also requested inquiry be made by the FBI concerning the possible civil criminal record, and a separate inquiry of civil authorities was made. 9. A Report for Suspension of Favorable Personnel Action shows the applicant: * was relieved from attachment on 18 April 1974 from the Personnel Control Facility, Fort Campbell, KY, to return to his unit in Turkey with a reporting date of 21 April 1974, he failed to report * was reported absent without leave (AWOL) on 22 April 1974 and dropped from the Army’s rolls on 21 May 1974 10. On 11 June 1974, court-martial charges were preferred against the applicant for failing to go to his appointed place of duty. 11. On 12 June 1974, the applicant’s commander submitted a request to revoke the applicant’s security clearance and void all of his clearance certificates contained in his “USAIRR” dossier. The commander’s request was based on the applicant being AWOL and dropped from the Army’s rolls. 12. On 3 December 1974, the applicant returned to military control at Fort Campbell, KY. 13. On 20 January 1975, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), with an Undesirable Discharge Certificate. He completed 9 months of net active service this period. He had 215 days of lost time. His DD Form 214 also shows an under conditions other than honorable character of service, and he was not awarded a personal decoration. 14. The complete facts and circumstances surrounding the applicant’s discharge are not available. His discharge packet was not in his record; however, a DD Form 214 in the applicant’s record provides the authority and reason for discharge. 15. Army Regulation 635-200, chapter 10 states that, a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge 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. 16. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) states, in pertinent part, the applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. It is not an investigative body. 17. In reaching its determination, the Board should consider the applicant's petition, service record, and statements in light of the published Department of Defense guidance on equity, injustice, or clemency. 18. Entitlement to VA benefits is not within the purview of this Board. 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 service record to include a reenlistment, the nature and length of his absence, his statement regarding the misconduct and whether to apply clemency. The Board found insufficient evidence of mitigating factors for the misconduct and the applicant did not provide any post-service accomplishments or letters of reference in support of a clemency determination. The Board determined that, based on preponderance of evidence, that the character of service the applicant received at discharge 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. Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states the applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. It is not an investigative body. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. 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. d. An under other than honorable conditions discharge is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. 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. 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. ABCMR Record of Proceedings (cont) AR20190004356 4 ABCMR Record of Proceedings (cont) AR20190004356 6