BOARD DATE: 18 July 2019 DOCKET NUMBER: AR20190005337 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 (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 he is requesting an upgrade of his discharge for personal reasons. The situation was a mistake of a young man in 1969. 3. On 9 January 1967, he enlisted in the Regular Army for a period of 2 years. 4. His service record shows he was absent without leave (AWOL) and in confinement for approximately 832 days. 5. On 13 April 1967, he received non-judicial punishment for being AWOL on 3 April 1967. 6. On 24 April 1968, the applicant was tried and convicted by a general court-martial for being AWOL from on or about 5 July 1967 to 28 February 1968. He was sentenced to be confined at hard labor for 8 months. 7. On 9 January 1969, he was tried and convicted by a special court-martial for being AWOL from on or about 5 to 23 September 1968. His sentence consisted of confinement at hard labor for 4 months and forfeiture of pay for 4 months. 8. In October and November 1969, a medical examination and psychiatric evaluation medically cleared the applicant for administrative separation. 9. On 19 November 1969, the applicant voluntarily requested to be discharged for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He consulted with legal counsel and was advised of his rights and the implications that were attached to his request for discharge. a. He was also advised of the basis for his contemplated trial by court-martial and the possible effects of an undesirable discharge. b. He acknowledged that he understood he would be deprived of many or all Army benefits, and may be ineligible for many or all benefits administered by the Veterans Administration. He also acknowledged that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He did not submit a statement in his own behalf. c. His chain of command recommended approval of his request to be discharged, and recommended he be issued an undesirable discharge. d. The separation authority approved the applicant’s request for discharge and directed that he be furnished an Undesirable Discharge Certificate. 10. On 28 November 1969, the applicant was discharged accordingly. He completed 7 months of net active service. He had “832” days of lost time. His DD Form 214 shows he was discharged with an “under conditions other than honorable” character of service and he was not awarded a personal decoration. 11. In February 1980, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge and determined he was properly and equitably discharge. 12. Army Regulation 635-200 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 for the good of the service in lieu of trial by court-martial. In a case in which an under other than honorable conditions character of service 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. Army Regulation 15–185 (Army Board for Correction of Military Records (ABCMR)) states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 14. In reaching its determination, the Board should consider the applicant's petition, his service record, and his 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 record and published DoD guidance for consideration of discharge upgrade requests. The Board considered the length of the applicant’s service, the frequency and length of his absences and whether to apply clemency. The Board considered the applicant’s statement, but found no mitigating factors in the records for his misconduct and the applicant provided no accomplishments or letters of reference in support of a clemency determination. The Board determined, based on the preponderance of evidence, that the character of service the applicant received at 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). Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 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 for the good of the service 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 (UOTHC) 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) AR20190005337 2 ABCMR Record of Proceedings (cont) AR20190005337 1