ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF BOARD DATE: 24 September 2019 DOCKET NUMBER: AR20190006467 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Review of Discharge from the Armed Forces) * VA Statement in Support of Claim 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150008203 on 7 April 2016. 3. The applicant states he is sorry for what he did and is seeking benefits. He believes the punishment was too strict. He explains he stayed past his authorized date because his mother died. 4. On 30 July 1968, the applicant enlisted in the Regular Army for four years at the age of 26. His enlisted qualification record shows he was from Puerto Rico with 1 year of high school; it does not show he was required to or attended English as a Second Language training. He completed basic training with excellent conduct and efficiency ratings; however, he was assigned to Fort Benjamin Harrison, IN for initial active duty entry training and listed absent without leave (AWOL) On 22 October 1968. 5. On 18 July 1974, the applicant was charged with being absent from: * 9 June 1970 to on or about 18 June 1974 * 5 August 1969 to on or about 12 May 1970 * 29 May 1969 to on or about 14 July 1969 * 14 January 1969 to on or about 15 March 1969 6. On 23 July 1974, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, chapter 10. He signed a request for discharge for the Good of the Service and indicated he would submit a statement in his own behalf. a. The applicant stated through what appears to be another Soldier named who wrote on his behalf because the applicant lacked sufficient English. The applicant enlisted in the Army to find a career but after a period of humiliation and non-judicial punishments (NJP) for offenses he couldn’t remember because he only knew a few words of English. He was always confused as to why things were done the way they were. He had two prior AWOLs because of his difficulty to adjust to another language. He left the Army because he could not learn English enough to comply with orders directed at me. He enjoyed his military life but was frustrated because of the language barrier. b. The applicant’s chain of command recommended approval and the appropriate authority approved the applicant’s request for discharge in lieu of trial by courts-martial on 7 August 1974; he directed the applicant be furnished an undesirable discharge. 7. On 16 August 1974, he was discharged accordingly; his DD Form 214 shows he completed 10 months, and 24 days of active service; approximately 666 days lost. 8. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in- lieu of trial by court martial. 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. 9. His record shows after initial training he went AWOL on several different occasions subsequently being dropped from the rolls each time and incurring a total of 666 days lost time. At the time he requested to be discharged in lieu of trial by court martial, his statement did not mention he went AWOL because of the death of his mother but only he had difficulty adjusting to another language. He successfully completed training; his record is void of evidence that shows English as a second language. He applied to the ABCMR and was denied. It was stated although the applicant struggled with a language barrier he committed numerous AWOL offenses which could have been tried by courts-martial. The applicant voluntarily requested the discharge. 10. The applicant requests an upgrade so that he may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, 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 statement, his record and length of service, the frequency and nature of his misconduct, his stated reason for his absences and the reason for his separation. The Board found insufficient evidence of in-service mitigation for his misconduct and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service he received upon separation 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 to amend the decision of the ABCMR set forth in Docket Number AR20150008203 on 7 April 2016. 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 635-200 (Active Duty Enlisted Administrative Separations), as in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states: a. A Chapter 10 (Discharge in Lieu of Trail by Court Martial) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. c. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. 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.