ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 September 2019 DOCKET NUMBER: AR20190006887 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 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 24 April 2019 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, in effect, he was young, in fear of his life, struggling, and not making good judgment calls. He should have been released with a general discharge, due to having a hard time adjusting to the military. 3. The applicant enlisted in the Regular Army on 26 July 1973. 4. The applicant’s service records show he was reported as absent without leave (AWOL) on or about 5 November 1973, from his Advanced Individual Training (AIT) unit at Fort Leonard Wood, Missouri. He remained AWOL until on or about 11 January 1974, when he was apprehended by civilian authorities. After his return, court-martial charges were preferred against him for violations of the UCMJ, however the relevant DD Form 458 (Charge Sheet) is not available for review. 5. The applicant consulted with legal counsel on 13 February 1974. 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. 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, there is no election selected. 6. The applicant accepted nonjudicial punishment on 4 March 1974, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go at the prescribed time to his appointed place of duty; on or about 2300 hours, 1 March 1974; 0200 hours, 2 March 1974; and 0800 hours, 2 March 1974. 7. The applicant’s immediate commander recommended disapproval of his request for discharge on 27 March 1974, under the provision of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of trial by court-martial. His commander cited the following as his reason for recommending disapproval of his request: On 13 Feb 74, [Applicant] was afforded legal counselling concerning his request for discharge for the good of the service. Personal and financial problems are his stated reasons for his unauthorized absence. [Applicant] enlisted on 26 Jul 73 for two years under the Regular Army Enlistment Option. He received BCT at Fort Jackson, S.C. [Applicant] completed approximately one month of AIT before departing AWOL from 5 Nov 73 to 8 Jan 74. [Applicant] has been AWOL only 65 days. He should be afforded the benefits of the Army’s Rehabilitation system. Neither his personal, nor the financial problems he stated as his reasons for wanting a discharge are substantiated with any documentation. It would not be in the best interests of the service to grant his request. 8. The applicant’s intermediate commander recommended approval of his request for discharge on 5 April 1974. His statement included the following: I am convinced that [the applicant] is a substandard Soldier who will never be capable of adjusting to a military environment and completing his military commitment in a satisfactory manner. He possesses a belligerent attitude toward the Army and I feel had he not gone AWOL from AIT, he would have been eliminated from the service earlier under provisions of AR 635-200. He no longer desires to fulfill his military commitment and is currently facing marital and family problems which I feel will hinder his possibilities for rehabilitation. In consideration of the foregoing I strongly recommend his request for discharge for the good of the service be approved. Retention on active duty will only serve to further aggravate his situation and lead to more serious administrative and judicial problems. 9. The applicant was reported by his unit as AWOL on or about 8 April 1974. 10. The separation authority approved the applicant's request for discharge on 9 April 1974, 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). However he was in an AWOL status at the time. 11. The applicant was returned to military control on or about 20 May 1974, after he was apprehended by civilian authorities. 12. The applicant again consulted with legal counsel on 22 May 1974. 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. 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 elected to submit the following statement: Dear Sir, The reason for my AWOL was that my mother is very ill and she cannot work too much. The only person working is my daddy and he do not work that much and we have a new house to pay for they need me at home to help pay some bills. I am married and my wife and I are not together because we do not have that much time together that why I do not think I could adjust to Army life plus, I do not make enough money in the Army at E-1 to be married and she is going to have a kid in a couple of month and she need me at home with her. She say that my mother worry about me when I am away in the Army that why she sick so much worrying about me and the way they treat me for the good of me and my people I should be discharged so I could help my daddy raise my two young sisters to help them through school. Because I did not finish high school. 13. The applicant underwent a separation physical examination on 28 May 1974. The relevant Standard Form 88 (Report of Medical Examination) shows he was qualified for separation. 14. Court-martial charges were preferred against the applicant on 30 May 1974, for violations of the UCMJ. The DD Forms 458 shows he was charged with: * being AWOL from on or about 5 November 1973 through on or about 9 January 1974 * being AWOL from on or about 8 April 1974 through on or about 21 May 1974 15. The applicant’s commander recommended approval of his request for discharge on 30 May 1974, under the provision of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of trial by court-martial. His commander cited the applicant’s two AWOLs as the reason for recommended approval. The applicant’s intermediate commander also recommended approval of his discharge request on 6 June 1974. 16. The separation authority approved the applicant's request for discharge on 11 June 1974, 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 an Undesirable Discharge Certificate. 17. The applicant was discharged on 23 June 1974. The DD Form 214 (Report of Separation from Active Duty) 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 7 months, and 17 days * Item 21 (Time Lost), 131 Days (See Item 27) * Item 27 (Remarks), the entry "Item 21: 131 Days Lost under 10 USC 972 from: 731105 to 740108; 740109 to 740204; 740408 to 740516." 18. 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. 19. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge; however, the ADRB denied his request on 19 June 1979. 20. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination 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 length of service, the frequency and nature of his misconduct, the reason for his separation, the commanders’ recommendation, his response to the notification and whether to apply clemency. The Board found insufficient mitigation for his absences while in-service and that 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 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. Army Regulation 635-200 sets 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. 3. 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) AR20190006887 6 1