ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 July 2021 DOCKET NUMBER: AR20210007766 APPLICANT REQUESTS: An upgrade of his characterization of service from 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) .Statement provided at time of discharge, undated .DD Forms 214 (Report of Separation from Active Duty) .DD Form 214 (Armed Forces of the United States Report of Transfer orDischarge) .NGB Form 22 (Report of Separation and Record of Service In The Army NationalGuard (ARNG)) FACTS: 1.The applicant did not file within the three-year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records (ABCMR) conducted a substantive review of this case and determinedit is in the interest of justice to excuse the applicant's failure to timely file. 2.The applicant states he is respectfully requesting an upgrade of his discharge due tofamily circumstance at the time. He was young and under major stress due to his wifeleaving him. He felt that he had no other alternative. He was not knowledgeableenough to address the issue as he should have. He truly regrets his actions. He hasdevoted many years to community service. He has had no negative actions since hisdischarge. He is in poor health and pleads for consideration of his case. 3.The applicant enlisted in in the Indiana ARNG on 23 November 1973. He honorablycompleted initial active duty for training from 15 January to 14 May 1974. He wasawarded military occupational specialty 11B (Infantryman) and released to the ARNG tocomplete his service obligation. 4.An Indiana ARNG Letter, dated 21 October 1976, shows he was initially notified hisunit had requested that he be ordered to active duty for a period of 24 months, less anyactive duty, active duty for training, annual training, or full time training that he wascredited with [completing]. He was notified this action was mandatory, since he hadaccumulated a total of five or more unexcused absences from training assembliesduring a 1-year period which started on the date of his first unexcused absence, orbecause he was absent from annual training without an excuse. Additionally, he wasinformed he was required to enter active duty on or about 30 days after the date of thisnotification. 5.Orders 58-157, Headquarters, Fifth United States Army, Fort Sam Houston, TX,dated 24 March 1977, shows the applicant was ordered to active duty for 17 monthsand 24 days, with a report date of 13 May 1977 to Fort Knox, KY, in pay grade E-2. His ultimate assignment was 101st Adjutant General Replacement Company, FortCampbell, KY. 6.The applicant left his unit at Fort Campbell in an absent without leave (AWOL) statusfrom 14 May to 6 June 1977 and from 12 June to 28 July 1977. On 4 August 1977, hewas charged with these AWOL offenses. 7.On 5 August 1977, following consultation with legal counsel, he requested dischargefor the good of the service in lieu of trial by court-martial under the provisions of chapter10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). Hesubmitted an undated statement in his own behalf indicating, he enlisted in the ARNG in1974; his first wife left him and he thought joining the ARNG would help get his mind offof his problems. He remarried and wanted to spend more time with his wife, missedmeetings and was ordered to active duty; when he reported to active duty he stayedonly 3 weeks. He could not adjust to military life, he also needed to be home to takecare of his family and felt it would be better for both him and the Army if he weredischarged. 8.A Report of Medical Examination, dated 9 August 1977, shows he was determined tobe medically qualified for separation. 9.On 12 August 1977, his immediate and intermediate commanders recommendedapproval of his request for discharge with an under other than honorable conditionsdischarge. 10.On 29 August 1977, the separation authority directed the applicant's reduction toprivate/E-1, approved his request for discharge due to conduct triable by court-martialunder the provisions of chapter 10, AR 635-200, with an under other than honorableconditions discharge. 11.Accordingly, on 14 September 1977, he was discharged. His DD Form 214confirms he completed 1 month and 24 days of net active service this period and he had 69 days of lost time. His authorized award is listed as the Marksman MarksmanshipQualification Badge Rifle (M-16). His DD Form 214 also shows in: .Reason and Authority, “X X XX” [see Remarks] .Character of Service, “Under Other Than Honorable Conditions” .Remarks, “Administrative Discharge-Conduct Triable by Court-Martial, SPD JFSChapter 10, AR 635-200, RE-3 & 3B” 12.AR 635-200 sets forth the basic authority for the separation of enlisted personnel.Chapter 10 of the version in effect at the time provided that a member who committedan offense or offenses for which the authorized punishment included a punitivedischarge, could submit a request for discharge for the good of the service at any timeafter court-martial charges were preferred, commanders would ensure that an individualwas not coerced into submitting a request for discharge for the good of the service inlieu of trial by court-martial. a.Consulting counsel would advise the member concerning the elements of theoffense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of veterans benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. b.An under other than honorable conditions discharge would normally be furnishedan individual who was discharged for the good of the service in lieu of trial by court-martial. However, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service, he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 13.The statement the applicant provided was initially submitted during the dischargeprocess and it is addressed in paragraph 7 above. 14.The applicant argues that his discharge should be upgraded based on his familycircumstance at the time of discharge. He was young and under major stress due to hiswife leaving him. He felt he had no other alternative. He was not knowledgeableenough to address the issue as he should have. He truly regrets his actions. He hasdevoted many years to community service. He has committed no offense since hisdischarge. He is in poor health and pleads for consideration of his case. 15.He completed 1 month and 24 days of his 17 month and 24-day service obligation,and he had 69 days of lost time. In reaching its determination, the Board can consider the applicant’s petition, his contentions, submissions, family problems, and service record in accordance with the published equity, injustice, or clemency guidance. 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 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so. 2.AR 15-185 (ABCMR) prescribes the policies and procedures for correction of militaryrecords by the Secretary of the Army acting through the ABCMR. The regulationprovides that the ABCMR begins its consideration of each case with the presumption ofadministrative regularity. The applicant has the burden of proving an error or injusticeby a preponderance of the evidence. 3.AR 635-200, in effect at the time, set forth the basic authority for the separation ofenlisted personnel, it states: a.A Chapter 10 is applicable to members who had committed an offense or offensesfor which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. 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. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. c. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. 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//