ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 October 2019 DOCKET NUMBER: AR20190009427 APPLICANT REQUESTS: * Reconsideration of his earlier request to upgrade his under other than honorable conditions discharge * In effect, correction of his DD Form 214 (Report of Separation from Active Duty) to more accurately show his period of absence without leave (AWOL) and the number of days he was on active duty * Copies of pay vouchers and the orders assigning him from Fort Jackson, SC to the U.S. Army Personnel Control Facility (PCF) at Fort Gordon, GA * Permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130016590 on 29 April 2014. 2. The applicant states, in effect, the error was that he was AWOL for 30 days. a. The orders he received at Fort Jackson indicated he was to report to the Fort Gordon PCF for duty. After 30 days, they released him to go to the motor pool; his military occupational specialty (MOS) was 64C (Motor Transport Operator). b. During the entire time, from boot camp (basic combat training (BCT)) until August, the Army did not pay him; he did what he could, but it was no good. His wife was pregnant at the time, and the fact he was not being paid forced him to go AWOL again; he left in August so that he could find a job and support his family. c. The applicant asserts he was "done wrong by the Army" and was not sent to the right people for help. Ever since his discharge, he has been seeking help, and he is still trying to make things right. He maintains he did everything that was asked of him, from then until now. d. The applicant further asserts "active days of 29 is wrong" (apparently referring to item 18(a) (Net Active Service This Period) on his DD Form 214, ending 19 December 1973; the complete entry shows 9 months and 29 days). 3. The applicant's service records show: a. After obtaining his parent's written permission, he enlisted into the Regular Army on 19 December 1972 for 3 years; he was 17 years old. Orders assigned him to Fort Jackson for BCT; he arrived on or about 8 January 1973. On or about 7 March 1973, orders reassigned him to a second Fort Jackson unit for advanced individual training (AIT). b. On 14 March 1973, the applicant's AIT unit reported him as AWOL; he returned to military control on 26 March 1973. On 29 March 1973, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for the aforementioned period of AWOL (13 days). The punishment consisted of a forfeiture of $144 per month for 1 month, and 30 days restriction and extra duty. c. Effective 29 April 1973, his chain of command promoted him to private (PV2)/E-2. d. Permanent change of station orders, dated 10 May 1973, directed the applicant to report to the U.S. Army School and Training Center at Fort Gordon on 26 May 1973; on 26 May 1973, he arrived and was further assigned to the Fort Gordon PCF as a light vehicle driver. e. On 27 June 1973, the applicant's Fort Gordon unit reported him as AWOL; he returned to military control after 5 days (1 July 1973). He departed his unit again in an AWOL status on 13 September 1973; on 12 October 1973, his unit dropped him from Army rolls. f. On 27 October 1973, civil authority arrested the applicant and returned him to military control; he was reassigned to the PCF at Fort Benning, GA. g. The applicant's complete separation packet is not available for review, however his service record includes orders showing, effective 13 December 1973, he was reduced from PV2 to private/E-1, per the order of the Commanding General, U.S. Army Infantry Center, Fort Benning; the reduction was based on the issuance of an undesirable discharge under other than honorable conditions. In addition, his record contains a DD Form 214 (Report of Separation from Active Duty), which shows, on 19 December 1973, he was discharged under other than honorable conditions; the separation authority was paragraph 10-1 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). His DD Form 214 also shows he completed 9 months and 29 days of his 3-year enlistment contract, with 62 days of lost time. He was awarded or authorized the National Defense Service Medal and a marksmanship qualification badge. h. On 8 July 2013, the applicant petitioned the Army Discharge Review Board (ADRB), requesting an upgraded character of service. On 21 August 2013, the Army Review Boards Agency (ARBA) advised the applicant in writing that his request was submitted beyond the ADRB's statutory 15-year time limit; ARBA provided the applicant a DD Form 149 so he could apply to the ABCMR. i. In or around September 2013, the applicant submitted an application to the ABCMR, in which he requested the upgrade of his discharge. (1) He stated one of the punishments he received as a result of an NJP action was a forfeiture of $144; he asserted, after this forfeiture was imposed, he drew no more pay. In addition, while he was in BCT, the Army only paid him $75 per month. Because "everyone pointed him wrong," he had to go AWOL to get a job; he had to support his pregnant wife. He further contended, they sent him pay vouchers with two different social security numbers on them; he was only 17 when he joined the Army and, if they had not messed up his pay, he would have remained for 20 or 30 years. He noted, regarding the NJP, he was charged with AWOL and had gone home because his grandmother had passed; with no pay, it took 14 days to go home and return to his unit. (2) On 29 April 2014, the ABCMR denied the applicant's request; the Board found the applicant's service did not meet the standards of acceptable conduct and duty performance required of Army personnel. 4. The applicant requests copies of pay vouchers and the orders that assigned him to Fort Gordon; the ABCMR is not the custodian of either finance or personnel records. a. The Defense Finance and Accounting Service (DFAS) is responsible for all military pay matters. Past Leave and Earnings Statements may be obtained by submitting a request to DFAS at the below-listed website: https://www.dfas.mil/dfas/AskDFAS/milserv4.html b. The National Personnel Records Center (NPRC) maintains the personnel records for former Army Soldiers; former Soldiers may request copies of their service records by submitting a Standard Form 180 (Request Pertaining to Military Records) or by writing a letter and sending it to: National Personnel Records Center, 1 Archives Drive, St. Louis, MO 63138. More information is also available at the following web address: https://www.archives.gov/veterans/military-service-records/standard-form180.html 5. With regard to the applicant's request to personally appear before the Board, AR 15-185 (ABCMR), the Board's governing regulation, states applicants are 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. 6. The absence of the applicant's separation packet means we are unable to determine the specific circumstance(s) that led to his discharge; however, despite the unavailability of the applicant's separation packet, and in light of the record copy of his DD Form 214, the Board presumes the applicant's leadership completed his separation properly. a. The applicant asserts, in effect, he was AWOL for 30 days; he contends, after receiving no pay for months, he was forced to go AWOL and seek civilian employment. b. The applicant's DD Form 214 indicates his combined periods of AWOL totaled 62 days; one period was over 30 days. (1) Per the Manual for Courts-Martial that was in effect at the time, the maximum punishment for AWOL in excess of 30 days included a punitive discharge. (2) Soldiers charged with UCMJ violations, for which a punitive discharge was a punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and offered in-lieu of trial by court-martial. c. In reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published 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 and length of service (9 months, 29 days), the frequency and nature of his misconduct and the reason for his separation. The Board found insufficient in-service mitigating factors 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. The Board concurs with the correction stated in the Administrative Note(s) below. 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: With the exception of the correction stated in the Administrative Note(s) that follow, 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. 10/17/2019 X Kerry J. Schindler CHAIRPERSON Signed by: SCHINDLER.KERRY.JOHN.1099712119 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): 1. AR 635-5 (Separation Documents), in effect at the time, stated items 18(a) through (f) was to reflect the Soldier's service, less lost time. 2. The applicant requests, in effect, that his DD Form 214 more accurately show his active duty service and periods of AWOL; his DD Form 214 reflects the following: * He served on active duty from 19 December 1972 until 19 December 1973 (366 days) * He had 62 days of lost time, as a result of the following AWOL periods: 14 through 26 March 1973 (13 days), 27 June through 1 July 1973 (5 days), and 13 September until 27 October 1973 (44 days); (13 days + 5 days + 44 days = 62 days) * 366 days of active duty minus 62 days of lost time equals 304 days of net active service; 304 days is equivalent to 10 months, vice 9 months and 29 days 3. As a result, amend his DD Form 214, ending 19 December 1973, by deleting the current entries in items 18(a), 18(c), and 18(e), and replacing them with "0/10/0." REFERENCES: 1. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-9d (Honorable Discharge) stated an honorable discharge was a separation with honor. Issuance of an honorable discharge was conditioned upon proper military behavior and proficient duty performance. A Soldier's service was to be characterized as honorable based on conduct ratings of at least "Good"; efficiency ratings of at least "Fair"; no general court-martial, and no more than one special court- martial conviction. b. Paragraph 1-9e (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 permitted a Soldier to request discharge for the good of the service when they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial, United States 1969 (Revised Edition), included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Once approved, an undesirable discharge was normally furnished, but the discharge authority could direct either an honorable or general discharge, if warranted. 2. The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments showed a punitive discharge was an authorized maximum punishment for convictions of Article 86 (AWOL for more than 30 days), UCMJ. 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 (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. 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. 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. 4. AR 15-185 (ABCMR), states: a. The ABCMR begins its consideration of each case with the presumption of administrative regularity; this means the Board presumes what the Army did was correct. b. 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. //NOTHING FOLLOWS//