BOARD DATE: 6 March 2020 DOCKET NUMBER: AR20190013926 APPLICANT REQUESTS: The applicant requests upgrade of his under other than honorable conditions discharge to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, at the time of his discharge, he was very young and had been exposed to a lot of drugs and alcohol. He asserts the discharge he received was involuntary because he was "in the brig" and wanted out; he just wanted to go home. He has nothing additional to add, but only asks that the Board review his record. He contends he was always "squared away" and was never involved in any type of trouble. He saw the military as his chance to see the world, and he wanted to make the Army his career. He now regrets the poor decisions he made and, if given the chance, he would probably have done things differently. He accepts he must now live with the choices he made and try his best to move forward. He seeks this upgrade so he can gain eligibility for benefits from the Department of Veterans Affairs (VA). 3. The applicant's service records show: a. After obtaining his parent's consent, the applicant enlisted into the Regular Army for a 3-year term on 27 December 1972; he was 17 years old. Following initial training, orders assigned him to Fort Hood, TX; he arrived at Fort Hood on 28 March 1973. Effective 27 April 1973, his Fort Hood chain of command promoted him to private (PV2)/E-2. b. On 2 October 1973, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for having been absent without leave (AWOL) from 24 to 28 September 1973. c. On 11 June 1974, civil authority arrested the applicant and placed him the county jail; he was released on 15 June 1974 and returned to military control (the applicant's service records do not show the reason for his arrest). d. On 20 August 1974, the applicant's unit reported him as AWOL and then reflected his return to military control on 22 August 1974. Effective 27 August 1974, the applicant's leadership placed him in military confinement (the record does not state why he was confined). e. The applicant's separation packet is not available for review. Although his records indicate he requested discharge in lieu of trial by court-martial, the records are missing the UCMJ violations with which he was charged, as well as his request for discharge in-lieu of trial by court-martial under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). Nonetheless, following documents are available: (1) Orders reducing the applicant from PV2 to private/E-1, effective 17 September 1974; the authority is paragraph 7-30b (3) (Approved for Discharge from Service with an Undesirable Discharge). (2) Separation orders, dated 4 October 1974, which indicate the applicant was to be discharged under other than honorable conditions on 8 October 1974. (3) DD Form 214 that affirms the applicant's discharge under other than honorable conditions and reflects the authority as chapter 10, AR 635-200. The applicant completed 1 year, 9 months, and 2 days of his 3-year enlistment contract; he was awarded or authorized a marksmanship qualification badge. 4. The applicant acknowledges his exposure to drugs and alcohol caused him to make decisions that ultimately led to his adverse discharge. He maintains he was otherwise a "squared away" Soldier who avoided trouble. He seeks this upgrade so he can obtain VA benefits. a. During the applicant's era of service, Soldiers charged with UCMJ violations, which included a punitive discharge, could voluntarily request separation under chapter 10, AR 635-200. Because the applicant's separation packet is unavailable for review, we are unable to determine the specific circumstance(s) that led to his discharge. However, in view of the fact his service record contains his DD Form 214 that shows the reason and authority for his separation, the Board presumes the applicant's leadership properly completed his discharge action. b. The ABCMR is not authorized to grant requests for upgraded characters of service solely to make the applicant eligible for Veterans' benefits; however, in reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, 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 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, the charges against him, his request for discharge and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct 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. 2. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. 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. b. 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. 3. AR 600-200 (Enlisted Personnel Management System), in effect at the time, stated in paragraph 7-30b (3) (Approved for Discharge from Service with an Undesirable Discharge), Soldiers being separated with an under other than honorable conditions discharge were to be reduced to the lowest enlisted grade. 4. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190013926 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190013926 6 ABCMR Record of Proceedings (cont) AR20190013926 4