IN THE CASE OF: BOARD DATE: 24 September 2019 DOCKET NUMBER: AR20190008931 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions discharge be upgraded to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge) * DD Form 214 (Certificate of Release or Discharge) 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 that he went absent without leave (AWOL) because his 3 year old son had been hospitalized for 3 weeks with pneumonia. His wife was alone and was struggling financially while caring for his son and she needed his help. 3. On 19 March 1974, at the age of 19, he enlisted in the Texas Army National Guard (TXARNG) for a period of 6 years. The highest rank he achieved was Private (PV2) on 17 June 1975. A review of his records at the time he enlisted he was unemployed with a 9th grade education. 4. A Request to Recycle or Relieve Trainee Personnel dated 11 June 1974 shows the company commander recommended the applicant be recycle to another unit in their 5th week of BCT. The applicant was hospitalized from 6 June-10 June 1974 and on seven day profile and cannot complete training prior to graduation. The unit was currently in their 6th week of training. The applicant had good conduct and efficiency ratings. His records are absent of providing information of why he was hospitalized during this time period nor does it provide supporting documentation of a recycle approval. 5. On 2 July 1974, his U.S. Army Training Center Infantry and Fort Polk sent an AWOL initial notification to his parent unit (TXARNG) informing them that the applicant had a date of termination of his enlistment agreement of approximately 23 October 1974, departed Absent without leave (AWOL) on 16 June 1974 and requested the TXARNG send a member of his command to interview relatives or locate the absentee to advise and assist him in returning to military control. The assistance of civilian police authorities need not be requested. In the event the applicant returns to military control the TXARNG headquarters would be notified. After the termination date of his ADT orders, he would not be returned to active army control and his personnel records would be forwarded to TXARNG headquarters according to AR 630-10, paragraph 6-8. 6. An Extract Copy of Morning Report dated 16 September 1974 shows on 18 September 1974 Fort Polk attached back to TXARNG in an AWOL status. 7. On 4 April 1975 the TXARNG requested active duty orders be issued for a period of 22 months and 10 days according to AR 135-91, stating he failed to fulfill satisfactory participation requirements. Action required by DA Message 251830z Apr 74, subject: Involuntary Order to Active Duty of Unsatisfactory Participants, have been accomplished. 8. On 2 May 1975, with a report date of 17 June 1975, Headquarters, Fifth U.S. Army published Letter Orders Number E-05-23, subject: Order to Active Duty – Reservist (involuntary) which involuntary ordered the applicant to report to U.S. Army Reception Station, Fort Polk, LA for active duty (22 months and 10 days) with an effective date of 17 June 1975. The Special Instructions stated, "Comply with the following numbered items of DA Supplemental Instructions…The term of enlistment of the applicant is extended as necessary to permit completion of the period of active duty for which ordered and/or served." 9. On 13 August 1975 and an AWOL Returnee Information sheet shows the applicant surrendered to Corpus Christi, TX civilian authorities. It indicates he is not in need or help for drug and/or alcohol abuse problems. He just wanted to be discharged. He went AWOL because he was going to die being recycled in basic combat training. He surrendered because he didn’t want to run anymore. 10. On 18 August 1975, U.S. Army Personnel Control Facility, Fort Hood, TX charged with him with being AWOL from Fort Polk, LA Reception Station from 17 June 1974 to 6 August 1975 (413 days). 11. On 19 August 1975, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial and his available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, chapter 10. a. He acknowledged his available rights, signed a request for discharge for the Good of the Service and indicated he would submit statements on his own behalf, it stated, he went AWOL because he did not want to get recycled. He did not like his C.O. (commanding officer/company) nor the way they treated him. He had a knee problem which caused him pain when he ran, so he went on sick call, but couldn’t receive any help. As a result, his sergeants made him run. Of note, there is no supporting documentation that shows why he went to sick call. b. The intermediate commanders concurred with the recommendation and the appropriate authority approved the applicant’s request for the good of the service, directing the applicant be reduced to the lowest grade possible and that his service be characterized as UOTHC. 9. On 19 September 1975, the applicant was discharged accordingly. His DD Form 214 shows he completed 1 year, 4 months and 13 days of total service for pay. Of note, block 27 contradicts the charge sheet. He was charged with being AWOL from 17 June 1974 to 6 August 1975 (413 days), but block 27 reflects 18 June 1975 to 5 August 1975 (49 days). 10. The applicant states that he was very stressed with his 3 year old son being hospitalized for pneumonia and his wife needed assistance caring for their son and financial assistance. The situation his family was in and he couldn’t remain focused because of this. At the time, he felt it was best to be by his family’s side. a. His records shows that he enlisted in the TXARNG and went AWOL while in an ADT status during BCT; upon termination of his original ADT orders, Fort Polk attached him back to his ARNG unit in an AWOL status. The TXARNG followed published guidance and he was ordered back to active duty involuntarily for unsatisfactory participation and voluntarily surrendered back to military control at Fort Hood, TX approximately 3 months later and voluntarily and willingly requested a discharge in lieu of trial by court-martial. (1) AR 135-91 in effect at the time stated action will be taken as prescribed in AR 630-10 if an officer or enlisted member of the reserve component fails to comply with orders, or after having reported for duty, is absent without proper authority. Although DA Message 251830z Apr 74, subject: Involuntary Order to Active Duty of Unsatisfactory Participants is not available to the ABCMR, based on the available evidence, it appears the TXARNG took appropriate action in effort to get the applicant to return to military control. (2) AR 630-10, paragraph 6-8 stated when a member has been attached pending determination and disposition of absentee status and is determined to be AWOL, he will normally be returned to the unit of assignment. (3) AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. b. At the time the applicant surrendered he only indicated he went AWOL because he did not want to be recycled and voluntarily requested he be discharged in lieu of trial by court martial, where he submitted a written statement indicating he went AWOL because he incurred a knee injury he could not get help for and didn't like the way his command was treating him. At no point during the separation process did the applicant provide he went AWOL due to personal and/or financial hardship. c. His records shows it was recommended he be recycled to another unit in the same week of training he last completed due to being hospitalized and being on profile. He went AWOL and was returned to the Texas National Guard in AWOL status, subsequently ordered involuntary to active duty. He was charged with being AWOL for 413 days from 17 June 1974 to 6 August 1975. As a result, he requested a discharge for the good of service under provisions of chapter 10. 11. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency. 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, his involuntary order to active duty, the frequency and nature of his misconduct, his voluntary surrender and the reason for his separation. The Board found insufficient evidence of in-service mitigation for the misconduct and 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 :XXX :XXX :XXX 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 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. Army Regulation 630-10 prescribes procedures and responsibilities for the administration of military personnel who are absent without leave or are in a status of desertion. Specifically, paragraph 6-8 states: a. A trainee who is not returned to military control or whose unauthorized absence is not otherwise terminated will be released from attachment based on the following, as appropriate: (1) At the end of the 6-month period from date of entering the training program (2) For those who absent themselves after 6 months of participation in the training program, on the 30th day following initial date of absence without leave or upon expiration of release date indicated by the training agreement, whichever occurs first. b. Such trainees will not be dropped from the rolls as deserters. c. Upon release, the individual should be immediately processed under the provisions of AR 135-91 as an unsatisfactory participant in training. 3. Army Regulation 135-91 in effect at the time stated action will be taken as prescribed in AR 630-10 if an officer or enlisted member of the reserve component fails to comply with orders, or after having reported for duty, is absent without proper authority. A member fails to participate satisfactorily when he fails, without proper authority, to attend or satisfactorily complete, for reason(s) within his control, active duty (AD) in a Federal status when called or ordered with his unit, active duty for training (ADT), or annual training (AT), as appropriate. In such cases, the following procedures will apply: a. The member's commander will determine if the member was notified in sufficient time to comply, and whether or not emergency or cogent reasons existed for his absence. b. Upon determining that the member was notified in sufficient time to comply, and that no emergency or cogent reason existed for his absence, the responsible commander will take the enforcement measures. 4. DA Message 251830z Apr 74, subject: Involuntary Order to Active Duty of Unsatisfactory Participants is not available to the ABCMR. 5. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 6. 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 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. 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) AR20190008931 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190008931 7 ABCMR Record of Proceedings (cont) AR20190008931 5