ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 18 July 2019 DOCKET NUMBER: AR20190005317 APPLICANT REQUESTS: The applicant requests correction of characterization of service to show his service is honorable or general. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) * Department of Veterans Affairs (VA) Form 21P0969 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 he served his country in good faith, although he got out of the military due to hardship in 1967. He never asked the Army for anything until now. He served the Army in good standing. He was never late, always on time, he got along with his comrades, and always did his job. He is old and in need. 3. The applicant served in the Army of the United States from 7 July 1966 to 1 September 1967 until he was honorably released due to “Hardship” and transferred to the United States Army Reserve (USAR). 4. A DA Form 2-1 (Personnel Qualification Record) shows he was involuntary ordered to active duty from the USAR on 30 September 1970. He was carried in an absent without leave (AWOL) status when he failed to report to Fort Polk, LA on this date. 5. On 4 November 1970, he was dropped from Army Rolls and was carried in a desertion status. 6. On 15 July 1975, he was apprehended by the Federal Bureau of Investigation in Woodward, OK, and confined in the Woodward County Jail. 7. On 17 July 1975, he was returned to military control at the Personnel Control Facility, Fort Sill, OK. 8. A DD Form 458 (Charge Sheet) shows, on 18 July 1975, court-martial charges were preferred against the applicant for being AWOL from 30 September 1970 through 15 July 1975. 9. On 18 July1975, both a mental status examination and a medical examination found the applicant qualified for separation. 10. A Disposition Form confirms the applicant voluntarily 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 he had been afforded the opportunity to speak with counsel prior to making his request. He declined to submit a statement in his own behalf. 11. On 28 July 1975, the applicant's commander recommended the applicant's request for discharge be approved and that he be issued an Undesirable Discharge Certificate. 12. On 29 July 1975, the court-martial authority approved the applicant's voluntary request for discharge, directed that he be reduced to pay grade of E-1, and the issuance of an Undesirable Discharge Certificate. 13. On 1 August 1975, he was discharged under the provisions of chapter 10, AR 635-200, for the good of the service with an undesirable discharge, in pay grade E-1. He completed 4 years, 3 months, and 8 days of net active service that was characterized as under conditions other than honorable. He had 1,750 days of lost time. His awards are listed as: The National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge Rifle. 14. Chapter 10 of AR 635-200, in effect at the time, stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. 15. The applicant provided a VA Form that shows a waiver of receipt of income. 16. The applicant contends he served his country in good faith, although he was discharged due to hardship in 1967, he never asked the Army for anything until now. He served the Army in good standing. He was never late, always on time, he got along with his comrades, and did his job, always. Now, he is old and in need. 17. The available evidence shows the applicant was discharged due to being AWOL for 1,750 days and he voluntarily requested a discharge to avoid a trial by court-martial. 18. In reaching its determination, the Board can consider the applicant’s petition, and his service record 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 previous Honorable hardship release, his orders to active duty for 10 months, his failure to report for active duty, the length of his absence and apprehension by the FBI and whether to provide clemency. The Board considered the applicant’s statement, but found no in-service mitigation for the misconduct and the applicant provided no post-service accomplishments or letters of reference in support of a clemency determination. Based on the preponderance of evidence, the Board determined 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 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): 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. 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. 3. AR 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. 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. 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 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) AR20190005317 4 1