ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 July 2019 DOCKET NUMBER: AR20190004544 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), with self-authored statement * DD Form 214 (Report of Separation from Active Duty), for the period ending 12 December 1975 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, he is requesting an upgrade to seek benefits and to move past the disgrace he has placed on himself and his family name because of his irresponsible actions. He doesn’t want to feel the disgrace he put on his country. He wants to feel the honor of representing his country as a respected and honored veteran. 3. The applicant enlisted in the Illinois Army National Guard (ILARNG) on 20 December 1973. 4. The applicant attended basic training at Fort Polk, LA; however, it is unclear whether or not he completed his basic and military occupational specialty (MOS) training. 5. The applicant's DA Form 20 (Enlisted Qualification Record) indicates he was released from active duty on or about 5 June 1974 and was returned to the control of the ILARNG. However, other documents suggest he was absent without leave (AWOL) during this period and did not complete his initial entry training. 6. Letter Orders Number E-03-102, issued by Headquarters, Fifth United States Army, Fort Sam Houston, TX, on 31 March 1975, involuntarily ordered the applicant to active duty, by direction of the President, for a period of 22 months. a. These orders cite Title 10, U.S. Code, Section 673a (later renumbered Section 12303) (Ready Reserve: members not assigned to, or participating satisfactorily in, units), and Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), paragraph 11.1, as the authority for this involuntary order to active duty. b. The applicant was ordered to report to the U.S. Army Reception Station, Fort Leonard Wood, MO, effective 14 May 1975; his ultimate assignment would be determined by first duty station. 7. The applicant failed to report as ordered on 14 May 1975 and was listed as AWOL. He was subsequently dropped from the rolls on 12 June 1975. He was apprehended by civilian authorities in Chicago, IL, on or about 26 November 1975, and was returned to military control. 8. Court-martial charges were preferred against the applicant on 2 December 1975 for violations of the Uniform Code of Military Justice (UCMJ). The DD Form 458 (Charge Sheet) show he was charged with being AWOL from on or about 14 May through on or about 26 November 1975. 9. The applicant consulted with legal counsel on 26 November 1975. 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 applicant 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 4 December 1975. 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 in effect, submitted the following statement: Dear Sir, I went AWOL, because my daughter was very sick in the hospital. She has bad heart, and I want to be close to her as much as possible. Because I give the world for my daughter to live and if she died, I would have nothing to live for. I love my daughter, she is very sick. My wife and daughter needed me. 10. The applicant’s immediate commander recommended approval of his request for discharge on 8 December 1975, under the provision of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of trial by court-martial. The commander stated [the applicant] had demonstrated by his failure to report for active duty that he was unwilling to serve and it was felt that rehabilitation and retention would prove futile. [The applicant] had been interviewed and in view of his statements, demeanor and attitude, a discharge would be in the best interest of the service. His intermediate commander also recommended approval of his request on 8 December 1975. 11. The separation authority approved the applicant's request for discharge on 10 December 1975, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed the applicant's reduction to the lowest enlisted grade and the issuance of a DD Form 258A (Undesirable Discharge Certificate). 12. The applicant was discharged on 12 December 1975. The DD Form 214, he was issued shows his service was characterized as UOTHC. His DD Form 214 further shows in: * Item 18c (Record of Service – Total Active Service), he was credited with completing 2 months, and 16 days; * Item 21 (Time Lost), 196 Days (USC 972); * Item 27 (Remarks), the entry "196 Days Lost under 10 USC 972 from: 14 May– 25OCT75" 13. The applicant 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 applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his UOTHC discharge. After careful consideration, the ADRB denied his request on 12 October 1983. 15. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicants 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 overall record of service, the frequency and nature of his misconduct, his reasons for the periods of AWOL, his separation and whether to apply clemency. The Board found insufficient mitigation for the misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board determined, based on a preponderance of evidence, that the character of service the applicant received upon discharge was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found 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. Title 10, USC, Section 12303 (formerly Section 673a), provides in pertinent part that: (a) Notwithstanding any other provision of law, the President may order to active duty any member of the Ready Reserve of an armed force who: (1) is not assigned to, or participating satisfactorily in, a unit of the Ready Reserve; (2) has not fulfilled his statutory reserve obligation; and (3) has not served on active duty for a total of 24 months. (b) A member who is ordered to active duty under this section may be required to serve on active duty until his total service on active duty equals 24 months. If his enlistment or other period of military service would expire before he has served the required period under this section, it may be extended until he has served the required period. 3. Army Regulation 135-91 prescribed policies, procedures, and responsibilities pertaining to satisfactory completion of the Ready Reserve service obligation and enforcement procedures pertaining thereto for certain enlisted male personnel of the Reserve components. a. Paragraph 11.1.a (Unauthorized absence from initial active duty for training (ADT)) provides that a member returned to military control prior to termination date of initial ADT. When an enlisted member of the ARNG of the United States or U.S. Army Reserve, having been ordered to initial ADT fails to report as ordered or, having reported for duty absents himself without proper authority, is returned to military control prior to the termination date of the member’s period of ADT, action will be taken as prescribed in Army Regulation 630-10 (Absence Without Leave and Desertion). b. Paragraph 11.1.b provides guidance related to members who are returned to military control subsequently to termination date of initial ADT. When an enlisted member of the ARNGUS or USAR who having been ordered to initial ADT fails to report as ordered or, having reported for duty absents himself without proper authority, is returned to military control after to the termination date of the members period of ADT the State adjutant general, will declare the member to be an unsatisfactory participant in the Ready Reserve program. Immediate action will be taken by the appropriate commander to order the member to active duty for period of 24 months, less the number of days and months he has previously served on active duty for training. 4. Army Regulation 635-200 set 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. 5. 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) AR20190004544 5 1