ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 September 2019 DOCKET NUMBER: AR20190010527 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 6 June 1969 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 father died then he entered the service and his brother was killed in an automobile accident. He went absent without leave (AWOL) to attend the funeral and to care for his mother. 3. The applicant enlisted in the Regular Army on 18 January 1967. 4. Before a special court-martial on 1 July 1967, at Fort Hood, Texas, the applicant was found guilty of being AWOL from on or about 15 April through on or about 20 June 1967. The court sentenced him to confinement at hard labor for four months and forfeiture of $77.00 pay for four months. 5. Before a special court-martial on 12 October 1967, at Fort Hood, Texas, the applicant was found guilty of being AWOL from on or about 24 July through on or about 30 September 1967. The court sentenced him to confinement at hard labor for three months. 6. Before a special court-martial on 1 February 1968, at Fort Hood, Texas, the applicant was found guilty of being AWOL from on or about 16 October 1967 through on or about 15 January 1968. The court sentenced him to confinement at hard labor for six months and forfeiture of $37.00 pay for six months. 7. A DA Form 20B (Insert Sheet to DA Form 20 Record of Court-Martial Conviction) shows the applicant was found guilty before a special court-martial on 26 June 1968 of being AWOL from on or about 7 February through on or about 18 June 1968. The court sentenced him to confinement at hard labor for six months and forfeiture of $20.00 pay for six months. 8. Before a special court-martial on 11 April 1969, at Fort Hood, Texas, the applicant was found guilty of being AWOL from on or about 22 November through on or about 12 December 1968, and for being AWOL from on or about 18 December 1968 through on or about 4 April 1969. The court sentenced him to confinement at hard labor for six months and forfeiture of $45.00 pay for six months. 9. The applicant was notified on 18 April 1969 of his immediate commander's intent to initiate separation actions against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), by reason of unfitness for military service. He noted the applicant had a total of 484 days of AWOL. 10. The applicant acknowledged receipt of the proposed separation notification on 18 April 1969 and acknowledged that he: * had been afforded the opportunity to be represented by counsel * elected not to submit statements in his own behalf * may be deprived of many rights and benefits as a Veteran under both Federal and State law * may encounter substantial prejudice in civilian life if he were issued a general discharge 11. The applicant underwent a mental status evaluation on 18 April 1969, which found him mentally responsible and able to participate in board proceedings. 12. The applicant's commander formally recommended his discharge on 6 May 1969, under the provisions of Army Regulation 635-212, based on unfitness. 13. The separation authority approved the recommended discharge on 23 May 1969 and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 14. The applicant was discharged on 6 June 1969, under the provisions of Army Regulation 635-212, and his service was characterized as UOTHC. 15. The Board should consider the applicant's overall service record and statement in accordance with the published equity, injustice, or clemency determination guidance. 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 provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board agreed that the applicant’s discharge characterization is appropriate for the misconduct. 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 (Personnel Separations – Enlisted Personnel), then in effect, provided the criteria governing the issuance of honorable, general, and undesirable discharge certificates. a. Paragraph 1-9d provided that 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 be clearly inappropriate. b. Paragraph 1-9e provided that a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. Army Regulation 635-212, then in effect, provided the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. It provided that individuals 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, sexual perversion, 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. 4. 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. a. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs 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. b. 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. c. 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.