ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20190007955 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 2 June 2019 * DD Form 214 (Report of Separation from Active Duty), for the period ending 18 March 1976 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 he was serving in the U.S. Army Reserve (USAR), in New Jersey, when he went to North Carolina on leave to see his ill mother. He knew she was dying but didn't have an exact day. He asked for an extension of his leave but was denied; he stayed anyway. His mother ultimately passed away; after attending to her funeral and disposing of her family property, he returned to New Jersey and was discharged because he was absent without leave (AWOL). He accepted it at the time as he was frustrated. At this point in his life, he would handle it differently. However, while he can't change what he did, he hopes he can change the character of his discharge. 3. The applicant enlisted in the USAR on 9 December 1972, in Greenville, North Carolina. 4. The applicant was ordered to active duty for training (ADT) effective 6 June 1973. His orders show he was scheduled to attend basic training on 18 June 1973 and advanced individual training on 10 August 1973, both at Fort Knox, KY. 5. The applicant was reported AWOL from on or about 7 August through on or about 9 August 1973. 6. The applicant completed his period of ADT and was honorably released from active duty and returned to the control of his USAR troop program unit of assignment. The DD Form 214 he was issued shows he was awarded military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic). 7. The applicant’s USAR unit notified him on 15 July 1974 of his failure to fulfill his reserve training obligation. He was informed that he had been absent from five or more training assemblies within a one year period. 8. Letter Orders Number E-12-065, issued by Headquarters, First United States Army, Fort Meade, Maryland on 10 December 1974, involuntarily ordered the applicant to active duty, by direction of the President, for a period of 19 months and 10 days. a. These orders cite Title 10, U.S. Code, Section 673a (later renumbered Section 12303) (Ready Reserve: members not assigned to, or participating satisfactorily in, units), and Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), paragraph 11.1, as the authority for this involuntary order to active duty. b. The applicant was ordered to report to the U.S. Army Reception Station, Fort Jackson, South Carolina effective 15 January 1975, with further assignment to U.S. Army Garrison, Fort Stewart, Georgia. 9. Special Orders Number 015, issued by Headquarters, U.S. Army Training Center and Fort Jackson, Fort Jackson, South Carolina on 21 January 1975, changed the applicant's report date to 29 January 1975. Special Orders subsequently reassigned him to the 75th Infantry Battalion (Ranger), Fort Stewart, Georgia on 6 February 1975. He was ultimately assigned to the 632nd Maintenance Company at Fort Stewart. 10. The applicant accepted nonjudicial punishment (NJP) on 3 April 1975, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being AWOL from on or about 23 March through on or about 1 April 1975. 11. The applicant’s service records contains the following DA Forms 4187 (Personnel Action) that show: * his duty status was changed from ordinary leave to AWOL, effective 12 June 1975 * he reported back to this unit to pick up his pay check on 2 July 1975, while in an AWOL status * his duty status was changed from present for duty to AWOL, effective 3 July 1975 * his duty status was changed from AWOL to dropped from the rolls, effective 29 July 1975 * his duty status was changed from AWOL to present for duty, effective 17 December 1975 * he was returned to military control at the U.S. Army Personnel Control Facility, Fort Bragg, North Carolina 12. Court-martial charges were preferred against the applicant on 17 December 1975 for violations of the Uniform Code of Military Justice (UCMJ). The DD Form 458 (Charge Sheet) show he was charged with being AWOL from on or about 3 July through on or about 17 December 1975. 13. The applicant underwent a mental status evaluation on 18 December 1975. The relevant DA Form 3822-R (Report of Mental Status Evaluation) and Standard Form (SF) 88 (Report of Medical Examination) show he had no significant mental illness, was mentally responsible, and had the mental capacity to understand and participate in board proceedings. 14. The applicant consulted with legal counsel on 23 December 1975. 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 on 19 December 1975, under the provisions 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. The applicant submitted the following statement in his behalf: Dear Sir, I want out on a Chapter 10. Because of my father health. And I also lost my mother last year of Dec. I all so fell that if I could get a Chapter 10 I could be close to his side at all time. I have a job coming to me my old job at Pitt M Hospital. My father all so have bad eyesight and cant ready. 15. The applicant’s immediate commander recommended approval of his request for discharge on 2 January 1976, under the provision of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of trial by court-martial. The commander stated, "[the applicant] states he was aware of the nature of the interview and the consequences of an Undesirable Discharge Certificate, however desires elimination from the service under the provisions of Chapter 10, AR 635-200. [The applicant] stated that his AWOL was caused by sickness in his family, and further stated he cannot adjust to Army life and desires to be discharged under Chapter 10." 16. The applicant was again reported as AWOL on 2 January 1976. 17. The applicant's intermediate commander recommended approval of his separation on 5 January 1976, under the provisions Army Regulation 635-200, Chapter 10. 18. The Fort Bragg Staff Judge Advocate reviewed the applicant's request for discharge and recommended approval on 19 January 1976. 19. The separation authority approved the applicant's request for discharge on 22 January 1976, 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). 20. The applicant was returned to military control from AWOL and placed in confinement on 24 February 1976. He was subsequently returned to duty and placed in an excess leave status on 25 February 1976. 21. The applicant was discharged on 18 March 1976, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. The DD Form 214 he was issued shows his service was characterized as UOTHC. It further shows in: * Item 18c (Record of Service – Total Active Service), he was credited with completing 9 months, and 29 days; * Item 21 (Time Lost), 272 Days; * Item 27 (Remarks), includes the entry "249 Days Lost under 10 USC 972. Excess Leave 23 Days. 3 Days Lost under 10 USC 972. During prior ADT period." 22. 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. 23. The Board should consider the applicant's statement 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 guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, the frequency and nature of his misconduct, the length of his absence, his statement for the Chapter 10 and whether to provide clemency. The Board found insufficient in-service mitigation for his AWOL and the applicant provided no post-service achievements or letters of reference in support of a clemency determination. Based on the 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. 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. Title 10, USC, Section 12303 (formerly Section 673a), provides in pertinent part that: (a) Notwithstanding any other provision of law, the President may order to active duty any member of the Ready Reserve of an armed force who: (1) is not assigned to, or participating satisfactorily in, a unit of the Ready Reserve; (2) has not fulfilled his statutory reserve obligation; and (3) has not served on active duty for a total of 24 months. (b) A member who is ordered to active duty under this section may be required to serve on active duty until his total service on active duty equals 24 months. If his enlistment or other period of military service would expire before he has served the required period under this section, it may be extended until he has served the required period. 3. Army Regulation 135-91 prescribed policies, procedures, and responsibilities pertaining to satisfactory completion of the Ready Reserve service obligation and enforcement procedures pertaining thereto for certain enlisted male personnel of the Reserve components. a. Paragraph 11.1.a (Unauthorized absence from initial active duty for training (ADT)) provides that a member returned to military control prior to termination date of initial ADT. When an enlisted member of the ARNG of the United States or U.S. Army Reserve, having been ordered to initial ADT fails to report as ordered or, having reported for duty absents himself without proper authority, is returned to military control prior to the termination date of the member’s period of ADT, action will be taken as prescribed in Army Regulation 630-10 (Absence Without Leave and Desertion). b. Paragraph 11.1.b provides guidance related to members who are returned to military control subsequently to termination date of initial ADT. When an enlisted member of the ARNGUS or USAR who having been ordered to initial ADT fails to report as ordered or, having reported for duty absents himself without proper authority, is returned to military control after to the termination date of the members period of ADT the State adjutant general, will declare the member to be an unsatisfactory participant in the Ready Reserve program. Immediate action will be taken by the appropriate commander to order the member to active duty for period of 24 months, less the number of days and months he has previously served on active duty for training. 4. Army Regulation 635-200 set 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. 5. 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) AR20190007955 6 1