ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 October 2019 DOCKET NUMBER: AR20190009865 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions characterization of service to honorable or general, under honorable conditions and a military pension. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * Character Reference Statement * Statement showing he submitted a claim to the Department of Veterans Affairs (VA) 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 (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 an upgrade of his discharge is requested because he found out he may be eligible for benefits from the VA and or healthcare/pension. He believes all veterans were pardoned prior to President Nixon’s pardon. He made a very bad mistake. He is very sorry for his actions. He is 71 years old and he has hearing problems and his memory comes and goes. 3. Additionally, he states he wants his discharge upgraded or whatever it takes for him to receive a military pension. He recently learned that he could be forgiven for the under other than honorable conditions discharge like President Nixon was pardoned for his offenses. a. When he joined the military he thought he was ready, but his idea of what his Army life would be was wrong. At first he had a lot of resentment, but soon he learned to like the military and decided to stay until retirement. He realized that it wasn't his plan that counted. It was the plan the Army had for him that counted. His military career started in high school Reserve Officer Training Corps (ROTC). He was a very strak trooper. He was an expert on the rifle team. You had to be good with the rifle and have good character to get on the riffle team. b. Then came the draft and he thought he knew it all because of ROTC. He had a military mind, but it was not mature enough for military life. His life was changed forever and he did not know how to accept that. He did a few things that he thought would not matter. But he later learned that things do matter in the military. Talking smart to an officer was his first mistake. He was too street savvy and straight off the streets of Chicago. He liked working on motors and one night he was down at the motor pool with a mechanic, Sergeant P, the time slipped by him and he arrived late for bed check. He tried to explain, but the sergeant wasn't having it; therefore, he accepted the punishment and went about his regular duties. c. He was also accused of stealing three rounds of ammunition. The truth is he had seen a guy making necklaces out of the rounds of ammunition. He would disarm the round, drill a hole through the casing, and put a chain through it to wear around the neck. d. What was not said about his absent without leave (AWOL) charge is that he had a sick daughter and she needed to go to the hospital. He was trying to get an extension with no success. He tried to get evidence to prove this situation, but they said, “We can go ahead and discharge him because we have enough evidence there.” So he went through the formalities of the discharge. 4. He was inducted into the Army of the United States on 27 July 1966. He held military occupational specialty (MOS) 11B (Light Weapons Infantryman). 5. A DA 8-274 (Medical Condition-Physical Profile), dated 10 August 1966, shows he was given a temporary profile for an abscess of the elbow. This profile stated no crawling for 1 week and then normal duty and profile. This document also stated he was to report to a medical facility on 17 August 1966 for revaluation. The available record contains no further evidence about this condition. 6. On 17 October 1966, he was assigned to Fort Carlson, CO with the principal duties of his MOS. 7. On 7 December 1966, he was convicted by a special court-martial of stealing $35 from two enlisted Soldiers against their will, on 24 November 1966. The court sentenced him to confinement at hard labor for 6 months and a forfeiture of pay for 6 months. 8. He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on: * 14 September 1966, for removing three rounds of live ammunition from the firing range; his punishment consisted of a forfeiture of pay * 12 June 1967, for being disrespectful in language toward a staff sergeant by saying, if you ask a stupid question you get a stupid answer”; his punishment consisted of extra duty, restriction, and a forfeiture of pay * 3 June 1967, for being absent from bed check without proper authority on 2 June 1967; his punishment consisted of extra duty and restriction * 15 November 1967, did for the purpose of avoiding 50 caliber machine gun firing, mount a vehicle which he was not authorized with intentions to return to garrison; his punishment consisted of restriction, extra duty, and a forfeiture of pay * 2 December 1967, for without proper authority absent himself from his unit from 0100 hours to 0730 hours on 2 December 1967; his punishment consisted of extra duty and restriction, reduction to private/E-2, and a forfeiture of pay (suspended for 90 days); this punishment was vacated on 19 December 1967 9. On 15 February 1968, he was convicted by a special court-martial of being disrespectful in language toward a noncommissioned officer, feign illness for the purpose of avoiding duty, forge or cause to be forged an official document, for being AWOL from 20 to 22 January 1968. He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay for 6 months. 10. On 26 April 1968, the applicant underwent a medical examination and he was found medically qualified for separation. 11. The applicant's record does not contain his complete separation packet or all of the facts and circumstances surrounding the discharge process. However, it does contain a DD Form 214 that was prepared at the time of separation showing he was discharged under provisions of AR 635-212, for unfitness, with an under other than honorable conditions discharge, in the rank of private/E-1. At the time of discharge, he had completed a total of 1 year, 5 months, and 4 days of creditable active military service. He also had 121 days of lost time. 12. Army Regulation (AR) 635-212, in effect, set forth the policy for administrative separation for Soldiers due to unfitness. It provided that Soldiers would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted otherwise. 13. The applicant provides a statement from: a. Ms. H who states she has known the applicant for more than 20 years. He is a good fellow, he worked as a mechanic when he was able to work. He regrets being in an incident that interrupted his military service. He tries to do the right thing. He has three children and he has to pay child support, which does not leave him very much money for rent. He regrets faking being sick and going AWOL, and he never forged a document. b. The VA website showing he applied for VA benefits on 26 October 2018. 14. The applicant contends he believes that he is eligible for the pardon that Soldiers received before President Nixon was pardoned. Additionally, he contends that he was accused of stealing three rounds of ammunitions that he did not take; he was late for bed check because he was at the motor pool and time slipped away on him; and that he was AWOL, because his daughter was sick and needed to go to the hospital. 15. Regarding his contentions, in effect, that he may be eligible for a pardon/clemency under Presidential Proclamation 4313, issued on 16 September 1974, that provided for the issuance of a clemency discharge to certain former Soldiers, who voluntarily entered into and completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973. Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge. The clemency discharge did not affect the individual’s underlying discharge, and did not entitle him to any VA benefits. Rather, it restored federal and, in most instances, State civil rights which may have been denied due to the less than honorable discharge. The applicant did not complete this program, and even if so, it would not affect his eligibility for benefits. 16. The ABCMR does not grant requests for the correction of records solely for making the applicant eligible for veterans or other benefits. The Board decides every case individually based upon its merits when an applicant requests a correction to his military records. 17. The applicant was convicted of various offenses by two special court-martials and five NJP’s to include stealing $35 from two enlisted Soldiers. The available evidence shows he underwent a medical examination and he was found medically qualified for separation; there is no evidence that he had a hearing problem when he served. He completed 1 year, 5 months, and 4 days of his 2 year service obligation and he had two special court-martial convictions and five NJP’s. 18. In reaching its determination, the Board can consider his petition, his submissions, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, applicable laws, 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 to overcome the misconduct and the applicant’s post-service evidence was insufficient to support 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 does not meet the eligibility requirements for pardon/clemency under Presidential Proclamation 4313. 3. A pension is only provided when a Soldier retires. Since the applicant was not eligible to retire nor did he retire from the Army, he is not eligible for a pension. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. AR 635-212, as then in effect, set forth the policy for administrative separation for Soldiers due to unfitness. It provided that Soldiers would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted otherwise. 3. AR 635-200 (Active Duty Enlisted Administrative Separations) provides for the separation of enlisted personnel: a. Provides that 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. Provides that 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. 4. Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former Soldiers, who voluntarily entered into and completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973. Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge. Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge. The clemency discharge did not affect the individual’s underlying discharge, and did not entitle him to any VA benefits. Rather, it restored federal and, in most instances, State civil rights which may have been denied due to the less than honorable discharge. If a participant of the program failed to complete the period of alternative service the original undesirable characterization of service, would be retained. 5. 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 based on 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. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20190009865 7 1