ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 17 September 2019 DOCKET NUMBER: AR20190007759 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Self-authored statement 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 writing in hope of getting his discharge upgraded. His DD Form 214 states ‘conditions other than honorable’, but his discharge certificate states ‘general discharge under honorable conditions.’ His DD Form 214 evidently carries any meaning in life so for many years he and his family had to settle for less than he was able to get because of his DD Form 214. a. He had his reasons for going AWOL. He arrived at Fort Bragg in November 1966. He was placed in A Company, 82nd Signal Battalion, 82nd Airborne Division. In March or April of the following year he was sent to Fort Gordon for training in military occupational skill (MOS) 72B (Entomologist). After graduation he received orders to go back to Fort Bragg. He thought his orders were just like all other orders for placement had said, “by delayed route”. Once he returned to Fort Bragg he was told that he’d been absent without leave (AWOL); he was courts-martialed and sentenced to 45 days hard labor, with no confinement. b. He served his sentence and became a good trooper again; he earned his stripes back as well. During his hard labor, he found out his military gear was stolen while he was away training for his MOS. His First Sergeant tried to make him sign a statement of charges because he was told he improperly stored his equipment; this was not true. On three different occasions they tried to make him sign the statement of charges and he refused. After that he was put on Kitchen Patrol (KP) duty more than anyone else in the company and guard duty. c. He used his chain of command to find out why all of his pay vouchers said no pay due. He went to finance three times but was only told, he had no pay coming. He then scheduled three different appointments to see the investigative general (IG) and was refused all three times so he went home; AWOL. Once he returned he was courts- martialed again and sentenced to three months stockade time. While he was in the stockade, he was told to clear post and leave. If they hadn’t stolen from him, lied to him about, and then try to make him pay for it, he would have remained a good trooper. Nothing was ever done about any of it. Altogether he was five months with no pay. He is trying one last time. If his discharge is upgraded he would be thankful; if not he would be thankful for the time put in to listen to his case. 3. On 19 May 1966, he was inducted into the Army of the United States at the age of 19. a. He received conduct and efficiency ratings of excellent from 25 May 1966 to 13 February 1967 during which time he successfully completed MOS 11B (Infantry) training, Airborne School and 1 month and 29 days at his first unit of assignment, 82nd Signal Battalion, Airborne, Fort Bragg, NC as a Radio Operator. b. On 14 February 1967 he was put in a temporary duty (TDY) status to attend Communication Service School in Fort Gordon, GA. On 17 February 1967 he received unsatisfactory conduct and efficiency ratings for desertion/AWOL. c. The insert sheet to his enlisted qualification record shows a record of a special court-martial conviction, Number 52 for being AWOL from 20 May 1967 until 3 July 1967. 4. On 21 June 1967, he underwent a special courts-marital (SCMO) and was found guilty for being AWOL from on or about 20 May 1967 to on or about 3 July 1967. On 7 August 1967, the sentence was adjudged and he was to be confined at hard labor for four months, forfeit thirty-seven dollars per month for four months, and reduced to the grade of Private (E-1). Confinement was reduced to two months. 5. On 16 February 1968, he underwent another SCMO and was found guilty for being AWOL from 7 January 1968 to 12 February 1968. On 19 February 1968, the sentence was adjudged and the applicant was to be confined at hard labor for six months and to be reduced to the grade of Private. On 19 March 1968, states the unexecuted portion of the sentence was suspended for four months and fifteen days. 7. On 16 April 1968 the applicant was discharged for unfitness with a under conditions other than honorable discharge; he completed 1 year, 7 months, and 8 days with approximately 110 days AWOL. His DD Form 214 shows: * Reason and Authority: AR 635-212 SPN 28B * Character of Service: Under Conditions Other Than Honorable * Decorations, Medals, Badges: Parachutist Badge, National Defense Service Medal * Time Lost: 110 days 8. The applicant provides an explanation of circumstances surrounding his reason(s) for going AWOL. a. His first AWOL was due to misunderstanding and misinterpretation of his assignment orders showing "delayed "route". The available evidence does not provide a copy of orders showing the applicant being sent to Fort Gordon, GA for 72B school however, his enlisted qualifications record shows he did attend the school obtaining the military occupational skill (MOS) 72B. b. The applicant contends when he was returned to duty from confinement, he was a good trooper and earned back his stripes. His second AWOL was due to being singled out to perform more extra duty when he refused, on three occasions to falsely sign a statement of charges identifying himself as the reason for his equipment being stolen while he was at school, his chain of commands disregard to resolve his no pay due problems and IGs refusal to meet with him he went home. His record shows on 7 August 1967 as part of his court-martial sentence, he was reduced to Private (E-1); the applicant’s record is void of him being promoted prior to his separation. According to 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. 9. The applicant contends there is a discrepancy where his DD Form 214 states "conditions other than honorable", but his discharge certificate states "general, discharge under honorable conditions". Neither the applicant nor his records provides a copy of a discharge certificate showing "general, under honorable conditions." 10. The applicant states if they had not stolen from him, lied about it, and try to make him pay for it, he would have remained a good trooper. He went 5 months with no pay, nothing was ever done about it. His record show’s he had to forfeit $37 for a total of ten months which was part of his sentence after undergoing two court-martials. His record shows after his second courts-martial he was discharged for unfitness and received a UOTHC. 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 of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found no evidence and the applicant provided none in support of his statement regarding his first AWOL; the Board found insufficient evidence of in-service mitigating factors for his other misconduct. The Board found 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 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 for correction of the records of the individual concerned. X CHAIRPERSON 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): None 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. AR 635-212, as then in effect, set forth the policy for administrative separation for Soldiers due to unfitness. It provided that Soldiers would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted otherwise. 3. AR 635-200 (Active Duty Enlisted Administrative Separations) provides for the separation of enlisted personnel, it provides: a. 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. 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. 4. 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. 5. 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.