IN THE CASE OF: BOARD DATE: 21 August 2020 DOCKET NUMBER: AR20190014759 APPLICANT REQUESTS: an upgrade of his discharge under other than honorable conditions to general under honorable conditions. 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) * Personal Statement REFERENCES: 1. Title 10, U.S. Code, 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 Army Board for Correction of Military Records (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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provided the authority and general provisions governing the separation of enlisted personnel prior to expiration of term of service. a. Paragraph 1-9e (General Discharge) stated a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. b. Paragraph 1-9f (Undesirable Discharge) stated an undesirable discharge is an administrative separation from the service under conditions other than honorable. It may be issued for unfitness, misconduct, homosexuality, or for security reasons. c. Paragraph 1-14 (Reduction in Grade) stated when a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. d. Chapter 10 (Discharge for the Good of the Service) stated an individual who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service in lieu of trial by court-martial. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Service 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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the 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: a. At the time of his enlistment at the age of 17, he had been in and out of five foster care homes and had been abusing alcohol since the age of 10. b. Try as he might, he could not stop his drinking, which lead to his nonjudicial punishment. He would go on leave and use up all his money on drinking and not have enough money to get back to base. c. After his discharge from the Army, his life was out of control. He was in and out of jail because of his drinking, until he was sentenced to 45 years in a Florida prison. d. He feels quite confident that had alcohol abuse not been a problem for him, or if he had the knowledge that such a problem existed, he could have taken the steps to get the help he needed. e. In 1975 at Fort Riley, KS, his company commander asked him if he had a problem with alcohol during an Article 15 hearing and stated he could be sent to a place for detoxification and alcohol abuse. He answered that he did not have an alcohol problem. That was the first time in his life he had ever been asked about his drinking. f. In the early 1970s, drinking was as much a part of life as doing one's job. There were beer vending machines in the barracks and they would drink 7 days a week. In his eyes, he was no worse than the next Soldier; he did his job. g. It wasn't until years later that he understood his problem with alcohol. He took the steps he needed and has now been sober for over 20 years. He has achieved his high school diploma and four vocational trade school diplomas. He has two daughters, four grandsons, and he would like his grandsons to make a career in the Army the way he wishes he had. h. He doesn't blame the Army for his drinking, but he does wish the military in the 1970s had known what they now know about alcohol and its effects. If the Army had known, he would have been sent to get the help he desperately needed. 3. He enlisted in the Regular Army for a period of 3 years on 30 August 1974 at age 17. 4. On 21 January 1975, he received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his unit, to wit: Company B, 3rd Battalion, 1st Training Brigade, U.S. Army Armor Center and Fort Knox, on or about 0700 hours, 13 January 1975, and remaining so absent until on or about 17 January 1975. His punishment consisted of reduction in pay grade from private two to private one, forfeiture of $74.00 per month for 1 month, and 14 days of extra duty and restriction. 5. The Headquarters, U.S. Army Armor Center and Fort Knox, Special Orders Number 21, dated 27 January 1975, announced his forfeiture of pay and reduced him to the rank/grade of private/E-1 effective 21 January 1975. 6. His DD Form 458 (Charge Sheet), dated 25 September 1975, shows charges were preferred against him for: a. Charge I: violation of the Article 86 (Absence Without Leave), UCMJ, for absenting himself from his unit, to wit: Company A, 2nd Battalion, 63rd Armor Regiment, Fort Riley, KS, on or about 0700 hours, 24 September 1975, and remaining so absent until on or about 1300 hours, 25 September 1975. b. Charge II: violation of Article 121 (Larceny and Wrongful Appropriation), UCMJ, for wrongfully appropriating one each Holley carburetor and one each Edelbrock single- quad intake manifold, of a value of about $260.00, the property of another private, on or about 1330 hours, 20 September 1975. 7. The Fort Riley Form 53, dated 30 September 1975, subject: Request for Discharge for the Good of the Service – Chapter 10, Army Regulation 635-200, states he voluntarily requested discharge for the good of the service. a. He understood that he may request discharge for the good of the service because charges have been preferred against him under the UCMJ which authorize the imposition of a bad conduct or dishonorable discharge. b. He is making the request of his own free will and has not been subjected to any coercion. He has been advised of the implications attached to his request. c. By submitting this request for discharge, he acknowledged that he is guilty of the charge(s) against him. d. He stated he did not desire further rehabilitation under any circumstances as he has no desire to perform further military service. e. Prior to completing the form, he has been afforded the opportunity to consult with appointed counsel who has fully advised him of the nature of his rights. f. He understood that if his request for discharge is accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. g. He understood that he may be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs) and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws. He may expect to encounter substantial prejudice in civilian life. h. He elected not to submit any statements in his own behalf. 8. On 4 November 1975, the Commanding General, Headquarters, 1st Infantry Division Rear (Provisional) and Fort Riley, directed the applicant's discharge under the provisions of Army Regulation 635-200, chapter 10, and the issuance of an Undesirable Discharge Certificate. 9. Headquarters, 1st Infantry Division Rear (Provisional) and Fort Riley, Special Orders Number 26, dated 10 November 1975, reduced him in rank/grade to private/E-1 effective 4 November 1975. 10. He was discharged on 18 November 1975. His DD Form 214 shows in: * item 9c (Authority and Reason) – Army Regulation 635-200, chapter 10, SPD KFS (Conduct Triable by Court-Martial) * item 9e (Character of Service) – Under Other Than Honorable Conditions * item 12a (Net Active Service this Period) – 1 year, 1 month, and 22 days * item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) – None * item 27 (Remarks) – 27 days of lost time during the periods 13 January 1975 through 16 January 1975, 10 June 1975 through 1 July 1975, and 24 September 1975 through 24 September 1975 BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense 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 reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence corroborating his statement regarding 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. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190014759 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1