IN THE CASE OF: BOARD DATE: 10 July 2020 DOCKET NUMBER: AR20200000423 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable or a general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) in lieu DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for period ending 11 September 1971 * DD Form 214 (Report of Separation from Active Duty) for period ending 10 February 1975 * Army National Guard Honorable Discharge Certificate dated 5 June 1974 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 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. On or about 29 January 1971, he enlisted in the Missouri Army National Guard (MOARNG) and served as a specialist five (SP5). On or about 5 June 1974, he thought about the problems he was having with employment, family, and money, and decided to go active for a career in the Army. He spoke with the Army (Army Recruiter) in Kansas City, MO and signed up for duty at Fort Lewis, WA. When he arrived at Fort Lewis with his family, he was told he would be reduced to E-2 pay. At that time, he told them that it was not what he was told when he was in Kansas City, MO. The reduction in pay was not going to work for a young family of three; his son was about one and a half years old. His wife and son had to return to Missouri until he could fix his money problem. b. He continued his service while trying to fix his rank with the AG (Adjutant General) office. It seemed that no one could or would help him. After a few months he was talking to his captain and he said off the record that he had made a mistake and there was nothing to do except to go home, so he did. He was back in Missouri working at a construction job to support his family. He went to Fort Leonard Wood, MO, in order to try to fix his rank problem but he was unsuccessful. He was discharged out of the Army with no resolution. c. It brings him to the current time. After a career of working mostly in construction and trucking, he employed as many as 50 plus personnel. He remained employed until he became disabled in 2010 because of health issues. Now at the end of his life he is trying to clean up all his old life issues before he passes on. This military issue is his main goal. With a little research he hopes and prays that the Board will agree to upgrade his discharge to honorable and help him fix a 45 year old mistake. 3. On 29 January 1971, the applicant enlisted in the MOARNG. His DD Form 214 for period ending 11 September 1971 shows he entered active duty on 11 May 1971 and was released from active duty (REFRAD) in the rank of private/E-2 (PV2) after completing his initial entry training. 4. His NGB Form 22 (Report of Separation and Record of Service in the ARNG) shows he was honorably discharged on 5 June 1974 in the rank of SP5. 5. On 6 June 1974 (2 years, 8 months, and 27 days after REFRAD), he enlisted in the Regular Army (RA) for a term of 3 years. His DD Form 4 (Enlistment Contract), dated 6 June 1974 shows in: * Item 3 (Grade/Rate): PV2, E-2 * Item 49 (Prior Service): Date of Discharge: 11 September 1971; Grade/Rate or Rank: PV2 E-2; Type of Discharge: Honorable; Reason for Discharge: SPN 764, AR 635-200 (Personnel Separations – Enlisted Personnel) * Item 54: The contract was fully explained to him and he understood the contract, and it was endorsed by the applicant * Item 56 (Remarks): Reference item 3, AR 601-280 (Regular Army Enlistment Program Personnel Procurement), Table 2-10 applies 6. On 25 June 1974, the applicant was assigned to Fort Lewis, WA. On 16 August 1974, approximately 53 days after being assigned to Fort Lewis, the applicant went absent without leave (AWOL). On 27 January 1975, he surrendered to military authorities. 7. On 29 January 1975, the applicant completed an SF 93 (Report of Medical History) and indicated he was in poor health. He also indicated, among other medical conditions, he had a history of a ruptured hernia, depression or excessive worry, and nervous trouble. He also indicated that he had, at the age of 21, an accidental gunshot wound to the head and the .22 caliber slug is still in his right cheek. He had back and chest pains from a car accident. The SF 88 (Report of Medical Examination) clinical evaluation indicated his abdomen and viscera, including the hernia, was abnormal. He was cleared for separation. His record is void of a mental status evaluation. 8. On 30 January 1975, court-martial charges were preferred against the applicant for one specification of being AWOL from 16 August 1974 and remaining absent until 27 January 1975. 9. On 31 January 1975, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of AR 635-200, chapter 10. The applicant elected to submit a statement on his own behalf. He stated: a. He believed he should have received a general discharge. He had a good record in the ARNG. He made SP5 and was in charge of his equipment and his men. His wife did not like the ARNG so he thought if he joined the Army he would have had a happy home. But he was busted (reduced) at Fort Lewis to E-2 and his wife and son had to go back to Missouri. His wife wrote him and told him that the people they owed were hounding her, so he took leave for two weeks in Missouri to try and straighten out their problems. The only way he could fix their problem was to go to work, so he went AWOL. He managed to keep their furniture but their two cars were repossessed. b. He felt he had given everything he could to the Army and with a general discharge, he and his wife could have done more for their country as civilians rather than as a Soldier. Because of his past record in the ARNG and at Fort Lewis, WA, his just reward would have been a general discharge. c. The chain of command recommended approval of his request and on 6 February 1975, the appropriate separation authority approved the applicant's request directing he be reduced to the grade of E-1 and issued an undesirable discharge. 10. On 10 February 1975, he was discharged accordingly. His service was characterized as UOTHC. He completed 2 months and 24 days of net service this period, with 164 days lost (AWOL). 13. His enlisted qualification record does not show a rating for his conduct and efficiency. 14. The applicant provides his Army National Guard Honorable Discharge Certificate dated 5 June 1974, which shows he was honorably discharged from the ARNG. 15. The applicant states he served in the MOARNG as a Specialist Five (SP5), but decided to enlist in the Army due to his employment, family, and money issues. When he arrived at Fort Lewis he would be reduced to E-2 pay, which was not what he was told. The reduction in pay created more financial issues for his family and his wife and son had to return to Missouri until he could fix his money problem. He was not receiving any help with his issue and it was his captain who advised him, off the record, to go home, so he did. He was back in Missouri working at a construction job to support his family. He was discharged out of the Army with no resolution. a. His record shows he enlisted in the RA in the rank of PV2 and at the age of 22 years old and charges were preferred against him for being AWOL, which resulted in 164 days lost. He completed 2 months and 24 days of his 3-year contractual obligation. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. c. In regards to his reduction, AR 601-210, stated in Table 2-10 (Enlistment Pay Grades for Personnel with Prior Service) if an applicant in the active duty for training program (RFA (Reserve Forces Act) 55 or REP (Reserve Enlistment Program) 63) and enlisted after 18 months following release from active duty for training, his enlistment pay grade was E-2. The applicant was on active duty under REP 63 and enlisted in the Regular Army 2 years, 8 months, and 27 days after being released from active duty. d. AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial is a voluntary discharge, which members who committed an offense or offenses for which the authorized punishment under the Uniform Code of Military Justice and the Manual for Courts-Martial (MCM), United States, 1969 (Revised Edition) included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. Per the MCM 1969 (Revised Edition), Article 86 – Absence Without Leave for more than 30 days authorized a dishonorable discharge. Soldiers processed under the provisions of Chapter 10 were not required to undergo a medical examination or a mental status evaluation; however, Soldiers who requested a medical examination was required to undergo a mental status evaluation. We are unable to provide the board if he was processed properly or the disposition of his mental status evaluation because his record is void of the evaluation. 16. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records the Armed Forces Health Longitudinal Technology Application (AHLTA) and the VA's Joint Legacy Viewer (JLV) and made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting discharge upgrade from under other than honorable conditions to honorable or general, contending that his misconduct (AWOL) was due to military pay problems and financial issues involving support of his family. He is now requesting discharge upgrade in order to obtain VA medical benefits. The Agency Medical Advisor was asked to review this request. b. Review of the military electronic medical record (AHLTA) indicates that it contains no information regarding the applicant due to fact it was not in use during applicant’s time in service. c. Review of the VA electronic medical record (JLV) indicates that it contains no clinical content regarding the applicant. d. No hard copy military medical records or civilian medical documentation were made available for review. e. After reviewing all of the available documentation, it is the opinion of the Agency medical advisor that no decision regarding medical mitigation can be made due to the complete lack of medical documentation. 17. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: 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 (circumstances regarding the period of AWOL), his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board noted the applicant's reasons for going AWOL, but found that his family circumstance was partly mitigating, considering how little a PV2 would have earned at the time. The Board also found the applicant's statements regarding his post-service business success in construction and trucking to be credible and compelling and supports a favorable clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation should be upgraded to general, under honorable conditions. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 for the period ending 10 February 1975 to show his service was characterized as general, under honorable conditions, and to show he held the rank/grade of private two/E-2 with a date of rank of 6 June 1974. 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 Army Board for Correction of Military Records (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 (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. 3. AR 601-210 (Regular Army Enlistment Program Personnel Procurement), in effect at the time, prescribed eligibility criteria governing the enlistment from civilian life of persons with or without prior service into the Regular Army. Table 2-10 (Enlistment Pay Grades for Personnel with Prior Service) prescribed enlistment pay grades for qualified former members of the Army, Navy, Air Force, Marine Corps, or Coast Guard. It stated if applicant in the active duty for training program (RFA (Reserve Forces Act) 55 or REP (Reserve Enlistment Program) 63) and enlists after 18 months following release from active duty for training, his enlistment pay grade was E-2. 4. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. It will be characterized as honorable when it has been determined that he merits an honorable discharge under the following standards: Has conduct ratings of at least ?Good,? has efficiency ratings of at least Fair, has not been convicted by a general court-martial, and has not been convicted more than once by special court-martial. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. d. A Chapter 10 (Discharge for the Good of the Service) is a voluntary discharge, which members who had committed an offense or offenses for which the authorized punishment under the Uniform Code of Military Justice and the Manual for Courts- Martial (MCM), United States, 1969 (Revised Edition) included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. Per Manual for Courts-Martial, Absence Without Leave for more than 30 days authorized a dishonorable discharge. Soldiers processed under the provisions of Chapter 10 were not required to undergo a medical examination or a mental status evaluation; however, Soldiers who requested a medical examination was required to undergo a mental status evaluation. 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 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. 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) AR20200000423 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200000423 7 ABCMR Record of Proceedings (cont) AR20200000423 6