ARMY BOARD FOR CORRECTIONS OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:  BOARD DATE:  6 July 2021 DOCKET NUMBER:  AR20210007126 


APPLICANT REQUESTS:  The applicant requests an upgrade of his under other than honorable conditions discharge to under honorable conditions (general) discharge with benefits. 

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 (ArmedForces), 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 theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states, in effect, when he returned from Germany, he waited untilThanksgiving to go on 10 days of leave to see his son.  He couldn't fin him, so hereturned to his duty assignment and waited until Christmas.  He took 10 more days ofleave but his ex-wife had taken his son and half brother from her mother's care.  Whenthey were found, his ex-wife had them in bar after bar.  Department of Human Services(DHS) finally took over because his mother-in-law had passed away.  They were put ina foster home.  He went to DHS to show them that he was his son's father.  When hegot out of the Army, his son was given to him and to his second wife.  They had him forthree or four years but his second wife was mean to him and he asked the applicant totake him back to the foster parent's house where he could be his half brother.

3.On 30 September 1974, at the age of 19 years old, the applicant enlisted in the Armyfor a period of three years.  His DA Form 2-1 (Personnel Qualification Record) shows hewent to basic training on 7 October 1974 and went to advanced individual training (AIT)for the military occupational specialty (MOS) 13B (Cannon Crewmember) on 17
December 1974.  He was assigned to a unit at Fort Sill, Oklahoma.  He was in Germany from 1 May 1976 to 12 October 1976, a period of five months. 

4.An extract of Records of nonjudicial punishment (NJP) shows he accepted NJP on:

a.25 March 1975, for failing to be at his appointed place of duty on 21 March 1975.His punishment included forfeiture of $50 suspended and 14 days extra duty. 

b.17 December 1975, for being absent without leave (AWOL) from on or about 6December 1975 to on or about 8 December 1975 and for violating a lawful general regulation.  His punishment included reduction to Private/E2 (PV2) and forfeiture of $90, suspended and 14 days extra duty. 

c.18 November 1976, AWOL from on or about 3 November 1976 to on or about 13November 1976.  His punishment included reduction to Private First Class (PFC) and 7 days extra duty and restriction suspended.   

5.On 3 November 1976, his duty status was changed from present for duty (PDY) toAWOL.  On 13 November 1976, his duty status was changed from AWOL to PDY.   On5 January 1977, the applicant's status was changed from ordinary leave to AWOL.  On4 February 1977, his status was changed from AWOL to dropped from rolls (DFR).There was not a DA Form 4187 (Personnel Action) changing his status to PDY nor anydocumentation showing whether he surrendered to military control or was apprehended,however, his DA Form 2-1 shows he was AWOL until 15 June 1977.

6.On 28 June 1977, the applicant received a report of Medical Examination, whichshows he had no medical conditions and was qualified for separation.

7.On 28 June 1977, the Commander, Special Processing Company, Fort Knox,Kentucky preferred one charge of AWOL against the applicant.

8.On 29 June 1977, the applicant voluntarily requested discharge for the good of theservice under the provisions of Army Regulation 635-200 (Personnel Separations –Enlisted Personnel), chapter 10.  He consulted with legal counsel and was advised ofthe basis for the trial by court-martial, his available rights and the basis for voluntarilyrequesting discharge under the provision of Army Regulation 635-200, chapter 10, andhe elected to submit a statement on his own behalf, which states, in effect:

a.He enlisted in the Army because he had been laid off of his job and there were noother jobs.  He was getting ready to be married and he had to support his family, so he thought it would be better if he joined the Army. 

b.Things were going fine until he had to go to Germany for six months.  His wife lefthim and took his son.  He wasn't aware of this until July when he got 15 days of leave to get a divorce and make arrangements for his son to be taken care of while he was in Germany.  He had his wife's parent take care of his son because his parents were both working and didn't have time to keep him. 

c.When he got back to Germany, things were going okay with his son at his in-lawsfor the for the first month or two.  Then they wrote to him, in Germany, and told him they were going to take his son away from him, which he now knows they couldn’t do that but at the time, he didn't know and couldn't be there with his son.   

d.When he got back from Germany, he went home for a few days and they wouldn'tlet him see his son or take him anywhere and that was the reason he went AWOL. 

e.He thinks the Army is all right but it was not for him.  The Army would not let himraise his son the way he thought he should be raised and let him be there for him the way he wanted to.   

9.The applicant's chain of command recommended approval of the requesteddischarge with an under other than honorable conditions discharge.  On 18 July 1977,the appropriate approval authority directed separation of the applicant with an underother than honorable discharge and directed he be reduced to the lowest enlistedgrade.

10.On 2 August 1977, the applicant was discharged accordingly.  His DD Form 214(Report of Separation from Active Duty) shows he completed 2 years, 4 months, and 11days of his 3-year enlistment contract, with 173 days of lost time.  He was authorizedthe Sharpshooter Qualification Badge (M-16).  On the same day, he received a UnderOther Than Honorable Conditions discharge certificate.

11.The applicant applied for an upgrade of his discharge to the Army DischargeReview Board (ADRB) and on 5 March 1990, the ADRB stated after carefulconsideration of his military records and all other available evidence, they determinedhe was properly and equitably discharged and denied his request.

12.The applicant requests upgrade his character of service to under honorableconditions (general) with benefits.  He states he went AWOL because his wife hadtaken his son from him and he wanted to find a way to take care of him.

a.During the applicant's era of service, Soldiers charged with Uniform Code ofMilitary Justice (UCMJ) violations, for which a punitive discharge was an authorized maximum punishment, could request separation under chapter 10, Army Regulation 635-200.  Such requests were voluntary and available in-lieu of trial by court-martial.
The Manual for Courts-Martial then in effect stated a punitive discharge was one of the authorized punishments for violations of Article 86 (Absence without Leave for more than 30 Days). 

13.The ABCMR does not grant requests for upgrade of discharges solely for thepurpose of making the applicant eligible for veterans' benefits; however, in reaching itsdetermination, the Board can consider the applicant's petition, his service record, andhis statements in light of the published guidance on equity, injustice, or clemency.

BOARD DISCUSSION: 

The Board carefully considered the applicants 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 reason for his separation and whether to apply clemency.  The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh 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. 

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 

:XX :XX :XX 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 militaryrecords must be filed within 3 years after discovery of the alleged error or injustice. Thisprovision of law also allows the ABCMR to excuse an applicant's failure to timely filewithin the 3-year statute of limitations if the ABCMR determines it would be in theinterest of justice to do so.

2.Army Regulation 635-200, in effect at the time, prescribed policies and procedures forenlisted administrative separations.

a.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 servicewhen 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 a general discharge, if warranted. 

3. The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments showed a punitive discharge was an available maximum punishment for violations of Article 86 (AWOL for more than 30 days). 
 
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. 
 
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