ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 September 2019 DOCKET NUMBER: AR20190008511 APPLICANT REQUESTS: In effect, his undesirable discharge be upgraded to an under honorable conditions (general) discharge. 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), 1 May 2019 * Army Discharge Review Board Brief (page 1), dated 6 December 1977 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 his senior noncommissioned officer told him to go absent without leave (AWOL) so that he would be dishonorably discharged. He states he was pressured into committing his acts of misconduct. 3. The applicant was inducted into the Army on 24 March 1970. 4. Summary Court-Martial Order Number 70, issued by Headquarters, 3rd Basic Combat Training Brigade, Army Training Center, Infantry, Fort Dix, New Jersey, shows the applicant was convicted, pursuant to his plea, of being AWOL from on or about 13 April 1970 until on or about 10 May 1970. He was sentenced to confinement at hard labor for 27 days and a forfeiture of $76.00 for one month. 5. Court-martial charges were preferred against the applicant on 6 April 1971 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 13 June 1970 until on or about 13 March 1971. 6. The applicant submitted a request for discharge 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 on 3 May 1971. His request was denied on 24 May 1971, while he was in an AWOL status. 7. Court-martial charges were preferred against the applicant on 8 October 1971 for violations of the UCMJ. His DD Form 458 shows he was charged with being AWOL from on or about 11 May 1971 until on or about 6 August 1971 and from on or about 9 August 1971 until on or about 16 September 1971. 8. The applicant consulted with legal counsel on 18 October 1971. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, 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. His request shows he elected to submit a statement, in which he noted that could not adapt to Army life. He stated: (1) He tried to convince himself to stay in the Army, but he could not do it. (2) He had nothing against the people in the Army, it was just the idea behind the Army. (3) He would have put in as a conscientious objector except he thought he had a heart murmur and the rest was unnecessary. (4) For the last 6 years, he had been into more violence and peace with sincerity and everyone seemed to be into the same thing. (5) Music is one of the things in life that is absolute truth. (6) People have very little to offer as people so he entered into music about 2 years prior and he spent 8 to 12 hours a day practicing the guitar. (7) He hoped that someday, he would be able to get his thoughts across to other people and get into his way of things. (8) He believed that if more people would talk with sincerity, there would be no need for the military, but he knows that is not possible yet. (9) He knew there is a need for the Army, but only the people who could do it, or believed in it, should do it. (10) The reason why he should be discharged was because of his thought process. (11) He did not want any benefits, he just wanted to play music for the rest of his life. 9. The separation authority's approval is not available for review. However, the discharge approval recommendations and the applicant's acknowledgement that his discharge was approved show his request for discharge was approved on or about 22 October 1971 and the issuance of a DD Form 258A (Undesirable Discharge Certificate) was directed. 10. The applicant was discharged on 16 November 1971, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court- martial. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms his service was characterized as under other than honorable conditions. 11. The Army Discharge Review Board reviewed the applicant's records on 6 December 1977 and determined that he was properly discharged. 12. 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. 13. The applicant's records show he had 5 months of total active service. He had no deployments and approximately 448 days of lost time due to AWOL and confinement. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statements in light of the published Department of Defense 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 had limited creditable service, no deployed wartime service and insufficient evidence of mitigating circumstances for the misconduct. Neither did the Board find sufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. The Board agreed that the applicant’s discharge characterization 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. 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. 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. c. Chapter 10 states that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, an undesirable discharge would normally be furnished to an individual who was discharged for the good of the service. 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) AR20190008511 6 1