BOARD DATE: 10 February 2020 DOCKET NUMBER: AR20190013043 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 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 1 August 2019 * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 1 August 2019 * U.S. Army Transportation School Diploma, dated 15 July 1970 * DD Form 214 (Armed Forces of the United States report of transfer or Discharge). period ending 10 February 1972 * United States Department of Justice, conditional clemency for absence offence November 1975 * University of the Diploma, dated January * Supervisor Boilermakers Exam completion, September 1994 * four character reference letters, dated from 23 July through 30 July 2019 * Bureau of Vital Records, , Certification of Birth * letter of employment history from Seamotive Corporation * Four, certification and or achievement certificates and letters 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, in effect, that his under other than honorable conditions (UOTHC) discharge should be upgraded to an honorable discharge. a. He was 17 years old when he left home for the first time and joined the military. He accepts responsibility for the actions that lead to his discharge in 1972. His mother was seriously ill and in the hospital; he requested leave to go see her. His leave expired and he requested an extension through the Red Cross but his request was denied. He did not want to leave his mother so he went absent without leave (AWOL). b. Since he was discharged, he obtained his high school equivalency diploma. He has had a very successful career in the ship repair industry, from 1973 to 1986, where he was promoted to supervisors of repairs. He continued his career and passed the civil service test and obtained a position with the Department of Transportation, repairing ferry boats from 1987 to 2015. He passed the welding test required by the U.S. Coast Guard and the American Bureau of Shipping to repair NYC ferry boats. He also performed additional duties as a boilermaker, shipyard inspector, and acted as a liaison to ensure repairs were done per the contract. He was a first responder during 9/11 at the World Trade Center recovery efforts, for which he received an accommodation from Mayor Guilliani. c. He has been happily married for 46 years with two children and four grandchildren. He has lived a respectful and faithful life to his family, neighbors, community, and church. He is 66 years old and has lived an honorable life. He respects the laws and values of this country and hopes his request is favorably honored and he can get an upgrade to his discharge. 3. The applicant enlisted in the Regular Army on 28 Jan 1970. 4. Before a summary court-martial on or about, at, the applicant was found guilty of being AWOL from on or about 14 January 1971 through on or about 6 May 1971. His sentence included reduction to the rank/grade of private/E-2, no previous convictions were considered. 5. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: * on 29 September 1971, for absenting himself from his unit without authority, from on or about 22 September 1971 to on or about 27 September 1971 * on 24 November 1971, for absenting himself from his unit without authority, from on or about 19 November 1971 to on or about 23 November 1971 6. The applicant's commander notified the applicant on an undetermined date of his intent to initiate actions to separate him from service under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), by reason of unfitness. 7. The applicant consulted with counsel and was advised of the basis for the contemplated actions to separate him from service under the provisions of Army Regulation 635-212, by reason of unsuitability. After consulting with counsel, the applicant acknowledged receipt of the proposed separation notification and requested consideration of his case by a board of officers. He further acknowledged that he: * did not intend to submit a statement 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 8. The applicant underwent a mental status evaluation on an undetermined date. The relevant Report of Mental Status Evaluation shows he had normal behavior; was fully alert and oriented; mood was level, had clear thought process; and had normal thought content and good memory. The evaluating physician determine he had the mental capacity to understand and participate in any administrative board proceedings and he was cleared for any administrative action deemed appropriate by his Command. 9. The applicant was barred from reenlistment on. The basis for this action was due to the acts of inefficiency and/or misconduct not resulting in courts-martial or unit punishment: * absent on 1 November 1971, received extra duty * absent on 2 November 1971, received extra duty * absent 0700-0800hrs, 3 November 1971, received extra training * absent on 8 November 1971, received extra training * disobeyed a lawful order on 16 November 1971, received extra training 10. The applicant's commander formally recommended his discharge on 7 December 1971, under the provisions of Army Regulation 635-212, based on unfitness. The applicant's intermediate commanders recommended approval of the discharge action and further recommended that the applicant be issued a DD Form 258A (Undesirable Discharge Certificate). The separation authority directed the applicant's appearance before a board of officers. 11. The applicant was notified on, of his requirement to appear before a board of officers on or about 20 January 1972. He acknowledged receipt of the notification memorandum on 18 January 1972. 12. A board of officers convened on to consider the applicant's fitness for further service and possible separation under the provisions of Army Regulation 635-212. The board recommended that the applicant be discharged from service due to unfitness with the issuance of an Undesirable Discharge Certificate. 13. The separation authority approved the recommended action on and directed the applicant's separation under the provisions of Army Regulation 635-212, by reason of unfitness. He further directed the issuance of an Undesirable Discharge Certificate. 14. The applicant was discharged on under the provisions of Army Regulation 635-212, and his service was characterized as UOTHC. 15. The applicant provides four character reference letters that attest to him being a hard-working man who is loyal to his family, friends and community. He been attending and supporting the parish and community for years. He is kind, compassionate, warm and selfless. He has strong values, faith, integrity and has great compassion for his family and others. He worked at the Staten Island Ferry for 20 Years where he was trained and proficient in all disciplines of welding. He handled all jobs in a professional and timely manner. He required little to no supervision and was a pleasure to work with. 16. The Board should consider the applicant's statement 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 records 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, a bar to reenlistment, the Mental Status Evaluation, the separation packet and consideration by a Board of Officers and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct. The Board considered the Presidential Conditional Clemency letter. The Board considered the evidence of post-service achievements and letters of reference the applicant provided 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 should be upgraded as a matter of clemency. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the DD Form 214 for the period of service ending 10 February 1972 to reflect in item 13a. (Character of Service) – “Under honorable conditions (General)” vice “Under conditions other than honorable.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade of the applicant’s character of service to honorable. 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 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. 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. 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, 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. 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) AR20190013043 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190013043 6 ABCMR Record of Proceedings (cont) AR20190013043 5