IN THE CASE OF: BOARD DATE: 11 July 2019 DOCKET NUMBER: AR20190005277 APPLICANT REQUESTS: The applicant requests an upgrade of his undesirable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Armed Forces of the United States Report of Transfer or 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. When he enlisted he was to be assigned as a Heavy Equipment Operator after basic training. Instead of the agreed assigned military occupational specialty (MOS) he was transferred to Army Career Group 12 (Combat Engineer). He complained to Judge Advocate General (JAG) officer at the base. The JAG officer told him to do something wrong until it forced someone in the Army to transfer him. He did not know the JAG officer could have completed the paperwork to transfer him, without the applicant doing something wrong. b. He has no documentation about this after all these years. He did not complete basic training. He feels that under the circumstances at the time, he should have received a general, under honorable conditions discharge. c. Had the recruiter actually saw that he was put in for the right MOS that was originally agreed upon and the JAG officer had taken his case and ensured he had gotten the proper transfer to the correct MOS, none of the problems would have happened. The MOS 62E was the MOS he was supposed to be placed in, but after basic training he was sent to MOS 12A (Combat Engineer). 3. On 17 September 1970, an Enlistment Contract shows the applicant enlisted for Army Career Group 12 Combat Engineers. He enlisted for a period of 3 years. He did not completed training requirements and was not awarded an MOS. 4. His service record shows he was: * absent without leave (AWOL) from 9 to 23 February 1971 * AWOL from 30 March to 27 April 1971 * dropped from the Army’s rolls from 28 April to 4 November 1971 * confined from 10 to 30 November 1971 5. Unit Orders Number 11 issued on 2 March 1971, show the applicant received non- judicial punishment, under the provisions of Article 15 of the Uniformed Code of Military Justice, for misconduct. He was reduced to private/E-1 and forfeited pay. 6. Special Orders Number 314 issued on 10 November 1971, show he was returned to military custody from AWOL status and having been dropped from the Army’s rolls. He was assigned to the Personnel Control Facility at Fort Ord, CA, effective 5 November 1971. 7. On 17 November 1971, he was medically cleared for administrative separation. 8. Special Orders Number 343 issued on 9 December 1971, show the applicant was reassigned to the Fort Ord, CA transfer station for separation processing and to be discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) with an Undesirable Discharge Certificate. 9. On 10 December 1971, he was discharged with an under other than honorable conditions character of service. His DD Form 214 also shows he completed 5 months and 9 days of net service. He had 256 days of lost time and was not awarded a personal decoration. 10. The complete facts and circumstances surrounding the applicant’s discharge are not available in his record. His discharge packet was not in his record. However, a DD Form 214 from his record shows his lost time and the reason and authority for his discharge. 11. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 12. 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. 13. 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD policy for consideration of discharge upgrade requests. The Board considered the applicant’s record of service, the frequency and nature of his misconduct, his statement and whether to apply clemency. The Board found no mitigating factors in the record and the applicant provided no in- service mitigation or post-service accomplishments or letters of reference in support of a clemency determination. The Board determined to not apply clemency and that the character of service the applicant received upon separation 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) AR20190005277 4 ABCMR Record of Proceedings (cont) AR20190005277 5