IN THE CASE OF:
BOARD DATE: 31 January 2022
DOCKET NUMBER:  AR20210008074 


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge, and correction of his DD Form 214 (Report of Separation from Active Duty) for the period ending 22 November 1977 to show his narrative reason for separation as "Secretarial Authority." 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

•DD Form 149 (Application for Correction of Military Record Under the Provisionsof Title 10, U.S. Code, Section 1552), dated 13 April 2021, with self-authoredstatement

•Legal Brief rendered by counsel (21 pages) with the following 25 Exhibits:



•Exhibit 1 – DD Forms 214 (first and second enlistments)

•Exhibit 2 – Discharge Order

•Exhibit 3 – DA Form 20 (Enlisted Qualification Record)

•Exhibit 4 – Personal Statement rendered by the applicant, undated

•Exhibit 5 – DA Form 2166-4 (Enlisted Efficiency Report), covering the periodJune 1972 to October 1973

•Exhibit 6 – DA Form 2166-4, covering the period September 1973 to August1974

•Exhibit 7 – Commander's Certificate for Excellence

•Exhibit 8 – DA Form 2166-5 (Enlisted Evaluation Report), covering the periodAugust 1975 to February 1976

•Exhibit 9 – DA Form 2627 (Record of Proceedings Under Article 15, UniformCode of Military Justice (UCMJ)), rendered in May 1976

•Exhibit 10 – Federal Bureau of Investigation (FBI) Record, dated27 October 1976

•Exhibit 11 – DA Form 2627, rendered in March 1977

•Exhibit 12 – Written Statement rendered by applicant, dated 9 March 1977

•Exhibit 13 – DD Form 458 (Charge Sheet), dated 6 October 1977

•Exhibit 14 – DA Form 2496 (Disposition Form), dated 13 October 1977

•Exhibit 15 – Action of Convening Authority, dated 18 October 1977


•Exhibit 16 – U.S. Army Enlisted Records and Evaluation Center (USAEREC)Form 35 (Deserter Checklist), dated 4 November 1977

•Exhibit 17 – FBI Report, dated 7 December 1977

•Exhibit 18 – Separation Letter from Army, dated 22 November 1977

•Exhibit 19 – Personal Statement rendered by JRW, undated

•Exhibit 20 – Personal Statement rendered by Staff Sergeant TPD,dated 9 March 1977

•Exhibit 21 – Personal Statement rendered by Sergeant CFE, dated9 March 1977

•Exhibit 22 – DA Form 2166-5, covering the period March 1976 to June 1977

•Exhibit 23 – Letter of Commendation, dated 19 December 1972

•Exhibit 24 – Personal Statement rendered by MAM, undated

•Exhibit 25 – Personal Statement rendered by GD, dated 11 February 2021



FACTS: 

1.The applicant did not file within the three-year time frame provided in Title 10, U.S.Code (USC), Section 1552 (b); however, the Army Board for Correction of MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states:



My name is [The Applicant].  Growing up in , I would say I came from a good middle class upbringing.  My father and brother both served in the military (my father served in the Korean war) and upon his discharge my father was employed as a civilian at in and later (retired after 20 or 30 years).  My father was a major influence in my life and at the age of 93 still is. My military career actually started in high school (2 years ROTC [Reserve Officers Training Corps, where I excelled on the drill team.  After graduation, I received a lotto #22 in the selective service lottery, which determined your chances of being drafted into the military.  I was advised by my father to enlist and get a guarantee from the Army of a military base to be stationed at for permanent duty.  When I enlisted in 1972, the Army guaranteed that I would serve with the 25th Infantry Division as an anti-tank gunner (11H) MOS (Military Occupational Specialty).  With the 25th lnfantry Division, I was given 'the position of acting squad leader because of my ROTC background and was promoted to SP4 [Specialist Four] after only 9 months of service.  I was given a letter of commendation from the battalion command sergeant major for being on the color guard and a commander's certificate for excellence as a gunner in the platoon which won a brigade 106mm [millimeter] anti-tank competition, and I served with the 21-gun salute for our WWII [World War II] and 







Korean War veterans (special duties).  I was also a company level representative to the Equal Opportunity Program, which dealt with race related issues whenever they came up and tried to address those issues at the company and platoon level.  I had no disciplinary problems during my first enlistment.  I enjoyed being a soldier and I was good at it. I was discharged from the service in 1974 with an Honorable Discharge and a rank of SP4.  Before being discharged, I was given a very low score on an Enlisted Efficiency Report (EER), why I don't know.  That was a surprise to me because I was performing very well.  My platoon sergeant was the one that gave it to me and was new to our platoon and did not know me.  At the time, he asked me if I was going to reenlist, and I told him no, and I think this may have been why he gave me the low score.  My next EER I got all excellent or outstanding ratings again from another sergeant and was recommended for promotion but I decided to leave at the end of my enlistment and go back to the civilian world. After being out of the service for about six months, I decided to re-enlist.  I had a wife and child to support (I had been married in 1972), and the country was in a recession.  Also, by re-enlisting within 6 months of my prior enlistment, I could maintain my rank of SP4.  For my re-enlistment, the Army guaranteed that I could continue to perform in my MOS and that I would be stationed at Fort Hood to stay in Texas with my family.  After re-enlisting, I was assigned to the Seventh Calvary at Fort Hood.  At that time, I intended to make the Army my career and thought that with my previous service I would advance quickly.  However, unlike my first enlistment, things did not go well.  Each time I applied for a promotion, I was rejected.  Also, despite my guarantee, I was sent away from my family to Germany for 6 months.  This put a lot of strain on my marriage, as I had been able to live with my family in Hawaii during my first enlistment.  While in Germany, my family did not have on-post housing, so they had to move back in with my wife's family. While in Germany, I received Article 15 punishment for allegedly disobeying an order to pull battalion guard.  I didn't think this was fair, as I was performing other duties when the order was supposedly given and never heard it.  As a result, I had to forfeit pay and perform extra duty.  After I returned from Germany, things did not get better.  I was arrested for allegedly selling pot based on a sealed indictment.  I wanted to fight the charge because I never sold pot and never met the police officer who allegedly bought pot from me, but my lawyer told me to take three years of probation and that the charge would eventually be reduced to a misdemeanor, but that didn't happen.  Once the Army found out about my arrest, I knew that my life would get more difficult. Most important, I was not making enough money to support my family in the Army, including my young son.  Although we eventually received on-post 





housing, once we received it, my wife became ineligible to receive the monthly spousal allotment check that she had received during my first enlistment.  Our financial problems put a lot of added strain on my marriage, as my wife was disappointed that the Army was not treating me right and threatened to leave me if I didn't get out of the service.  I loved her and my son and didn't want to lose them.  Also, as a Catholic, I feared that I couldn't get divorced or I'd be forced to leave the religion. Around that time, they were going to send me back to Germany, but my lawyer was able to stop me from going back because of my legal problems.  I was instead transferred to another unit at Fort Hood.  My captain got angry with this, and he took my TA-50 with him to Germany.  This added to my financial problems, as TA-50s are very expensive and I had to replace it.  Because of my financial problems, I left the Army for a few weeks to make more money for my family.  I worked full-time as a concrete finisher, made enough money for my family to live off for a month, and then returned.  After getting back, however, I received an NJP [nonjudicial punishment] for my absences, and this resulted in me being demoted to Private First Class (PFC). At that point, everything fell apart - I was mentally not there.  With my demotion, I had to move my family off post because PFCs were not eligible for on post family housing.  They moved back, while I stayed on post.  Also with the demotion, I made even less money, so our financial problems got even worse.  I was fighting a lot with my wife, and I started to think that she was not being faithful.  I was also no longer working in my MOS as the Army had guaranteed and was instead assigned to shoot an M60 machine gun, which I hadn't been properly taught how to shoot and which was too big for me.  When shooting an M60, you need total concentration, and I just didn't have it.  At that time, I just thought it was better for the Army if I got out. Around this time, I asked a sergeant why I was not being promoted.  He told me about my bad EER from my first enlistment and told me that I would never be promoted because of it.  I asked the sergeant what I should do, and he told me that my only choice was to get out of the Army.  The Sergeant told me to go AWOL [Absent Without Leave] for over 30 days, and when I returned to the base, I would get thrown in the stockade and then be discharged with a Less Than Honorable and could apply for an upgrade after 5 years.  I know now this was bad advice but I was young and trying to keep my family together, so I left the service again and went to work full-time as a roofer, which allowed me to support my family better.  After I returned, I found out that my TA-50 had been stolen again, and that was the last straw that broke the camel’s back, as a Soldier needs a TA-50 to be a Soldier.  I left the Army again and then received my Other Than Honorable discharge. 







Upon my release from the Army, my marriage fell apart, which had a major impact on my life, and my turning to alcohol only made things worse.  DUls came into play along with depression.  Fortunately, I got the help I needed through Alcoholics Anonymous (AA) and have been clean since 2014.  AA has had a big impact on my life.  My son once told me that I am "a completely different person" when I don't drink, and I now try to live my life one day at a time and on the straight and narrow.  Last year, my son passed away at the age of 47 from a brain tumor.  It was difficult to remain sober after he died, but I did so. Since my release, I have managed to put my life together in other ways as well.  I have been in a steady relationship for the past 30 years, and I have had a successful career.  Immediately after my release, I worked as a concrete finisher and a roofing contractor.  A few years later, I took a job as a surveyor at a civil engineering firm and was immediately promoted to draftsmen when my boss noticed the quality of my note taking skills.  I have since been in a series of technical jobs.  In the 1990s, I worked designing security systems for important buildings such as the .  More recently, I worked as an engineering technician at designing fiber optics routes, as an engineering technician doing computer aided design (CAD) on electrical schematics for the, and as a senior designer at  designing fiber optic routes. Since 2016, I have owned and operated my own business providing CAD services. I have also been active in the community.  I have been very involved in the sport of disc golf, serving as a member of the Professional Disc Golf Association (PDGA) for many years and participating in 75 career events (including winning three major tournaments).  I have also helped design courses for disc golf events, including courses at .  I'm also an alumni member of the Wounded Warriors Project, and I have supported the organization at  in the 5K run or walk Marathon every year (4) except for this year due to COVID-19. I feel that an upgrade would further help to get my life back on track.  I regret the actions that led to my Less Than Honorable discharge and wish that my second enlistment would have ended like my first one.  I made some bad decisions then but feel like I am a worthy candidate for an upgrade.  I initially applied for an upgrade through the Red Cross in 5 years after my discharge.  I was told by the Red Cross that I had submitted all the right paperwork but was told to "hurry up and wait" and never heard or saw anything about a potential upgrade.   

To whom it may concern, I liked serving, and was proud to wear my uniform.  I just wished my wife would have felt to same way, and not knowing how to deal with that situation at such a young age and worrying about my family was my down fall. Having a wife and child to support is important to me, and at the time I did ask my father what I should do.  He said, "Family, God, and Country" in that order – you go take care of your family and do what you have to do.  And I did my best, but sometimes even your best is not good enough.  I consider myself a veteran, I would like to be remembered as a veteran with an Honorable Discharge.  I did more good than not during my period of service in the Army. 





















3.Following a period of honorable service in the Regular Army from 30 November 1971 through 29 November 1974, the applicant reenlisted in the Regular Army on 2 May 1975.  His military occupational specialty was 11B (Infantryman) and he was assigned to a unit at Fort Hood, Texas.4.A DA Form 2627 shows the applicant received field grade nonjudicial punishment on 29 April 1976, under the provisions of Article 15, UCMJ, for willfully disobeying a lawful order from a noncommissioned officer (NCO), on or about 10 April 1976.  His punishment consisted of reduction from the rank/grade of specialist four (SP4)/E-4 to private first class (PFC)/E-3, suspended for 90 days; forfeiture of $75.00 per month for one month; and extra duty for 12 days.5.DA Forms 4187 (Personnel Action) show the applicant’s unit changed his duty status from present for duty (PDY) to ordinary leave (OLV), effective 2 October 1976, and from OLV to absent without leave (AWOL), effective 17 October 1976.6.A letter rendered by Chief, U.S. Army Deserter Information Point on 15 November 1976, and enclosed FBI Report, show the applicant was arrested by civil authorities in for possession of more than four ounces of marijuana, on 13 February 1975 (prior to his current period of enlistment) and in on 17 October 1976 (during his current period of enlistment) for delivery of an unspecified amount of marijuana.7.DA Forms 4187 show the applicant’s unit changed his duty status from:•Assigned Not Joined (ASNJ) to AWOL, effective 10 November 1976, when he did not report to his new unit•AWOL to Joined, effective 18 November 1976, when he surrendered to his unit•PDY to AWOL, effective 22 November 1976•AWOL to PDY, effective 7 December 1976•OLV to AWOL, effective 0001 hours 25 February 1977•AWOL to PDY, effective 2200 hours 25 February 1977





































8.A DA Form 2627 shows the applicant received company grade nonjudicial punishment on 11 March 1977, under the provisions of Article 15, UCMJ, for without authority, absenting himself from his unit during the aforementioned periods shown above.  His punishment consisted of reduction from the rank/grade of SP4/E-4 to PFC/E-3; confinement in correctional custody for seven days; and forfeiture of $101.00 per month for one month.9.DA Forms 4187 show the applicant’s unit changed his duty status from:•PDY to AWOL, effective 3 May 1977•AWOL to PDY, effective 21 June 1977•PDY to AWOL, effective 22 July 1977•AWOL to PDY, effective 1 August 1977•PDY to AWOL, effective 4 August 1977•AWOL to Dropped from the Rolls, effective 2 September 197710.A DA Form 3835 (Notice of Unauthorized Absence from United States Army), dated 6 September 1977, shows the applicant was reported to law enforcement agencies as a deserter, effective 2 September 1977.11.A DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) shows the applicant returned to military control when he surrendered to military police at on 1 October 1977.12.Court-martial charges were preferred against the applicant on 6 October 1977 for three specifications of violation of Article 86 of the UCMJ.  The DD Form 458 shows he was charged with absenting himself from his unit, without authority, from:•on or about 3 May 1977 through on or about 21 June 1977•on or about 22 July 1977 through on or about 1 August 1977•on or about 4 August 1977 through on or about 3 October 197713.The applicant consulted with legal counsel on 13 October 1977 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a UOTHC discharge; and the procedures and rights that were available to him.a.Subsequent to receiving legal counsel, the applicant voluntarily requesteddischarge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service.  In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 

b.His request for discharge indicates his intent to submit a statement in his ownbehalf; however, such statement, if submitted, is not available for review. 















14.The separation authority approved the applicant's request for discharge on18 October 1977, under the provisions of Army Regulation 635-200, Chapter 10, and directed his reduction to the lowest enlisted grade and the issuance of a UOTHC discharge.  The narrative reason and authority for discharge were "For the Good of the Service," and his separation program designator (SPD) code was "JFS."15.A DA Form 4187 shows the applicant’s unit changed his duty status from PDY to AWOL, effective 26 October 1977.16.Orders 226-5 issued by Headquarters, III Corps and Fort Hood, Fort Hood, Texas on 16 November 1977, discharged the applicant from the Regular Army, effective22 November 1977.17.The applicant was discharged on 22 November 1977, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of court-martial. The DD Form 214 he was issued confirms he was discharged in the lowest enlisted grade, his SPD code was "JFS" and his service was characterized as UOTHC.  A narrative reason for separation is not specified on this version of the DD Form 214; however, that information coincides with the SPD code issued.18.A DA form 3835 shows the applicant surrendered to the FBI on 5 December 1977 and was issued travel documents in order to return to his parent unit, but failed to do so.19.A U.S. Department of Justice, FBI letter, dated 7 December 1977, shows the applicant was apprehended in on 5 December 1977 and was confined in the AWOL section at Fort Sam Houston, Texas.  As a result, his status was cleared and the FBI investigation was terminated.20.The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge.  Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial by court-martial.21.Counsel provides a 21-page brief and 25 exhibits, which are all available for the Board’s review and consideration, in support of his contentions that the applicant’scharacterization of service and narrative reason for separation should be upgraded to remove an injustice based upon: 

•his previous period of honorable service

•his tremendous family and personal problems were significant mitigating factorsin his misconduct

•apart from such misconduct, his duty performance and potential as reflected inevaluation reports and statements provided by his supervisors were excellent

•his misconduct was nonviolent in nature and motivated by a desire to support hisfamily

•his rehabilitation and post-service conduct support an upgrade



22.The applicant’s record is void of evidence and the applicant has not providedevidence showing it would have been more appropriate to separate him under adifferent SPD or for a different narrative reason.

23.The Board should consider the applicant's request in accordance with the publishedequity, injustice, or clemency determination guidance.

BOARD DISCUSSION: 

After reviewing the application, all supporting documents and evidence within the military record, the Board determined that relief was not warranted. The Board considered the applicant's statement, his record of service, the frequency and nature of the misconduct, reason for his separation and whether to apply clemency. The applicant had consultation with legal counsel, advised of procedures and rights available to him and requested discharge. Although the applicant presented post-service professional accomplishments, the Board found insufficient evidence of mitigation for the pattern of misconduct leading to the applicant's separation. Based on the preponderance of the evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief.  


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. 



X

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. 





ADMINISTRATIVE NOTE(S): 

Not Applicable 

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.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.  The version in effect at the time provided that:

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. 

b.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.   

c.Chapter 10 provided that a member who had committed an offense or offenses,for which the authorized punishment included a punitive 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 charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 

3.The Under Secretary of Defense (Personnel and Readiness) issued guidance toService Discharge Review Boards (DRB) and Service Boards for Correction of MilitaryRecords (BCM/NR) on 25 July 2018 [Wilkie Memorandum], regarding equity, injustice,or clemency determinations.  Clemency generally refers to relief specifically grantedfrom a criminal sentence.  BCM/NRs may grant clemency regardless of the court-martialforum.  However, the guidance applies to more than clemency from a sentencing in acourt-martial; it also applies to any other corrections, including changes in a discharge,which may be warranted on equity or relief from injustice grounds.

a.This guidance does not mandate relief, but rather provides standards andprinciples 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, Boards 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 ofservice 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//