ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 September 2019 DOCKET NUMBER: AR20190007568 APPLICANT REQUESTS: as the spouse of a deceased former service member (FSM), the applicant requests the upgrade of the FSM's under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * FSM's death certificate * Marriage certificate FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 her husband went back and "pulled his time," but never managed to get his records changed. She is requesting this upgrade in honor of his passing in 2015. 3. The FSM's service records show: a. He enlisted into the Regular Army on 17 June 1968 for a 3-year term; he was 19 years old. After a brief assignment at Fort Benning, GA, orders reassigned him to Korea; he arrived on 19 May 1969. Effective 18 June 1969, the FSM's chain of command promoted him to specialist four (SP4)/E-4. On 19 June 1970, he completed his tour in Korea and orders reassigned him to Fort Carson, CO; he arrived on or about 6 July 1970. b. In November, and again in December 1970, the FSM accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ): * 9 November 1970 – for failing to go to battalion guard mount at the time prescribed, and absenting himself from the battalion guardhouse for about 1 hour * 8 December 1970 – for failing to go to battalion guard mount at the time prescribed, and failing to obey a chief warrant officer's order not to leave the guardhouse without signing out c. On 24 December 1970, the FSM's Fort Carson unit reported him as absent without leave (AWOL) and dropped him from Army rolls on 12 January 1971. On 15 June 1971, he returned to military control and orders reassigned him to the U.S. Army Personnel Control Facility (PCF) at Fort Knox, KY. d. On 19 July 1971, consistent with the FSM's pleas, a special court-martial convicted him of AWOL from 24 December 1970 until 15 June 1971 (173 days). The court sentenced him to 3 months' hard labor without confinement, forfeiture of $50 per months for 6 months, and reduction to private/E-1. On 22 July 1971, the court-martial convening authority approved the sentence and ordered its execution. e. On 19 August 1971, the PCF reported the FSM as AWOL and dropped him from Army rolls on 19 September 1971. The FSM returned to military control on 24 November 1971, but left again in an AWOL status on 3 December 1971. He remained absent until 12 January 1972. f. On 14 January 1972, the FSM's PCF commander preferred court-martial charges against him for two periods of AWOL: 19 August until 24 November 1971 (97 days) and 3 December 1971 until 12 January 1972 (40 days). g. On 11 February 1972, after consulting with counsel, the FSM requested discharge for the good of the service, in-lieu of trial by court-martial, under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request, he affirmed no one subjected him to coercion and his counsel had advised him of the implications of his request. The FSM elected to submit a statement in his own behalf, and wrote, in effect: (1) He described his entry into the Army and stated he had not gotten into any trouble during either his initial training or his first post-training assignment. After being promoted to SP4 in Korea, he got into a fight at an off-post bar; he and a friend had been drinking heavily. His leadership reduced him to private first class after he accepted NJP; his chain of command "busted (him) once more" after he was involved in a second similar incident. (2) On his reassignment to Fort Carson, he began to drink excessively. His chain of command offered him NJP for missing guard mount, but it was not his fault. After this, he got into more trouble, then went AWOL. He turned himself in, was reassigned to the PCF, and underwent a trial by court-martial; after 3 weeks, he went AWOL again. He said he had no explanation as to why he had left in an AWOL status. The civilian police arrested him and gave him a direct order to return to the PCF; he disobeyed that order and went AWOL again. After a little over a month, he was given another direct order; this time he obeyed and turned himself in to the PCF. (3) He acknowledged he had a very bad AWOL record and knew the Army would not benefit by retaining him on active duty. He asked the separation authority to consider his "good time" when determining his character of service. h. On 6 March 1972, the FSM's PCF commander completed a DA Form 2496 (Disposition Form) in which he stated the FSM had developed a strong dislike for military service and intended to be a behavior problem until he was discharged. The commander found him to be emotionally immature, and noted the FSM had gone AWOL without regard to the severe consequences. The commander's impression was the FSM was determined to seek a discharge by misconduct, if necessary. i. On 21 March 1972, the separation authority approved the FSM's request and directed his undesirable discharge under other than honorable conditions; on 30 March 1972, he was discharged accordingly. His DD Form 214 shows he completed 2 years, 9 months, and 10 days of his 3-year enlistment contract, with a total of 364 days of lost time (173 days prior to normal expiration term of service, and 191 days after). He was awarded or authorized the Armed Forces Expeditionary Medal. j. The FSM's service record includes a DA Form 20 (Enlisted Qualification Record), which shows: * Conduct and Efficiency ratings were "Excellent" from entry on active duty until July 1970; his ratings were unsatisfactory from July 1970 until his discharge * He was awarded the National Defense Service Medal 4. The FSM's spouse argues the FSM served all of the lost time he had incurred, but failed to have his service records corrected accordingly. a. Per the Manual for Courts-Martial that was in effect at the time, the maximum punishment for AWOL in excess of 30 days included a punitive discharge; Soldiers charged with UCMJ violations, for which a punitive discharge was a punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and offered in-lieu of trial by court-martial. b. In reaching its determination, the Board can consider the applicant's petition, the FSM's service record, and the applicant's statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the applicant did not complete a full enlistment, had no wartime service, no meritorious personal awards and insufficient evidence of mitigating circumstances for the misconduct. The Board found limited evidence of remorse or post-service honorable conduct that might have mitigated the discharge characterization that resulted from his misconduct. The Board agreed that the applicant’s discharge characterization as reflected on his DD Form 214 is appropriate. 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): 1. AR 635-5 (Separation Documents), in effect at the time, prescribed policies and procedures for the preparation of DD Forms 214. It stated the DD form 214 was the most vital document a separating Soldier would receive; as such, it was of paramount importance that the information be complete, accurate, and in accordance with authorized entries. Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) was to list awards and decorations given during the Soldier's entire military service. Sources of information for DD Form 214 entries included the Soldier's DA Form 20. 2. As a result, amend his DD Form 214, ending 30 March 1972, by adding the National Defense Service Medal. //NOTHING FOLLOWS// REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-9d (Honorable Discharge) stated an honorable discharge was a separation with honor. Issuance of an honorable discharge was conditioned upon proper military behavior and proficient duty performance. A Soldier's service was to be characterized as honorable based on conduct ratings of at least "Good"; efficiency ratings of at least "Fair"; no general court-martial, and no more than one special court- martial conviction. b. Paragraph 1-9e (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 permitted a Soldier to request discharge for the good of the service when they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial, United States 1969 (Revised Edition), included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Once approved, an undesirable discharge was normally furnished, but the discharge authority could direct either an honorable or general discharge, if warranted. 3. The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments showed a dishonorable discharge was a punishment allowed for convictions of Article 86 (AWOL for more than 30 days), UCMJ. 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. 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. 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.