BOARD DATE: 27 September 2019 DOCKET NUMBER: AR20190009226 APPLICANT REQUESTS: The applicant requests: * an upgrade of his under other than honorable conditions (UOTHC) discharge * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement, dated 12 June 2019 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: a. Despite being hospitalized the last week of basic training with a lung infection, he was released the day of the G-3 (unclear) graduation and was promoted to private two(PV2)/E-2. He was promoted to private first class (PFC)/E-3 for being in the top percentage of his advanced individual training (AIT) class. He was always one of the six gunners selected as Soldier of the day on numerous occasions. He was also selected to participate in the Battalion Soldier of the Month Board. When the Cobra Attack Helicopters were added to the unit inventory he was one of the Soldiers selected to form ammo loading crews. b. His unit was alerted for deployment to Iran because of the fuel crisis. Sometime later he went on leave and suffered frost bite in both feet. Because of the crisis, the American Red Cross notified Fort Campbell, KY, that he was injured. His doctor determined he was suffering from third degree frost bite. He was on profile, still being treated for his frost bite, not wearing boots, and unable to stand in formation not wearing boots when his unit went to the field. He received an Article 15, Uniform Code of Military Justice (UCMJ), for refusing to go to the field. He had been stationed at Fort Campbell, KY for 22 months and still being treated for frost bite when he received orders for Germany. He felt that his health was being ignored by the unit. c. He left Fort Campbell, KY and went on leave for 30 days and at the end of his leave he missed his flight. He went to main post desk and was turned away because the sergeant said he was not attached to anyone. He went to the same sergeant for at least three times and on the last time, what he believes was on Thursday, the sergeant told him to leave his records and come back on Monday. On Monday the military police took him to Fort Meade, MD. He requests an upgrade in order to be able to submit his disability compensation. 3. On 21 August 1972, at the age of 20 years old, the applicant enlisted in the Regular Army for a term of 3 years. 4. He accepted nonjudicial punishment (NJP) on: * 3 September 1974 for being absent without leave (AWOL) from 13 August 1974 until 21 August 1974 * 6 December 1974 for being AWOL from 1 December 1974 until 2 December 1974 5. The applicant’s record shows on: * 13 August 1974, during his permanent change of station to Germany from Fort Campbell, KY, the applicant went absent without leave (AWOL) * 21 August 1974, he surrendered to military authorities. * 20 September 1974, the applicant went AWOL and on 20 November 1974, he surrendered to military authorities 6. On 29 November 1974 court-martial charges were preferred against the applicant for one specification of being AWOL from 20 September 1974 until 20 November 1974. On the same date the applicant submitted a statement in which he stated in pertinent part, he wanted to get out of the Army because he had not been treated fairly. The case was referred to a summary court-martial. There is no record that the summary court-martial proceedings were conducted. 7. On 13 December 1974, court-martial charges were preferred against the applicant for two specifications of being AWOL from 20 September 1974 until 20 November 1974 and from 9 December 1974 until 11 December 1974. The case was referred to a special court-martial. 8. On 19 December 1974, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 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, his available rights and the basis for voluntarily requesting discharge under the provision of AR 635- 200, chapter 10. He elected not to submit statements on his own behalf. 9. The applicant's immediate commander recommended approval of his request and on 10 January 1974, the appropriate separation authority approved the applicant's request directing that he be issued an Undesirable Discharge Certificate and he be reduced to the lowest enlisted grade. 10. On 21 January 1975, he was discharged accordingly. His service was characterized as UOTHC. He completed 2 years, 1 month, and 28 days of net active service this period. His DD Form 214 (Report of Separation from Active Duty) shows: * He was awarded or authorized the National Defense Service Medal: * 93 Days Lost Under Title 10, U.S. Code, section 972: 13 August 1974 - 20 August 1974; 20 September 1974 – 19 November 1974; 9 December 1974 – 10 December 1974; 11 December 1974 – 1 January 1974 11. On 3 August 1974, the Army Discharge Review Board denied his petition to upgrade is discharge, determining that he was properly discharged. 12. The applicant states, in part, he requests an upgrade in order to be able to submit his disability compensation. His record shows he enlisted at the age of 20 years old, he accepted two NJPs, charges were preferred against him for two specifications of being AWOL, and he had 93 lost days (71 days due to AWOL and 22 days due confinement). He served 2 years, 1 month, and 28 days of his 3 years contractual obligation. 13. The applicant requests an upgrade so that he may receive benefits. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits. 14. In regards to the applicant's request for a personal appearance, Army Regulation 15-185, states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 15. AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. 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. 16. In reaching its determination, the Board can consider the applicant’s petition and service record 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 record 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 and the reason for his separation. The Board found insufficient evidence of in-service mitigation for the misconduct; the applicant provided no additional evidence. 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. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. 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 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. b. 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. c. When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. d. A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. 3. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. a. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. b. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190009226 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190009226 7 ABCMR Record of Proceedings (cont) AR20190009226 5