IN THE CASE OF: BOARD DATE: 8 December 2021 DOCKET NUMBER: AR20210009311 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * 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 (Armed Forces), 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 the interest of justice to excuse the applicant's failure to timely file. 2. The applicant is requesting an upgrade of his discharge to obtain medical and dental services. 3. On 22 October 1978, the applicant, at the age of 17 years old, enlisted in the Army for a period of 3 years. There was no evidenced of a parental waiver for enlistment before he was 18 years of age. His DA Form 2-1 (Personnel Qualification Record) shows he attended basic training on 29 October 1975 and advanced individual training (AIT) in the military occupational specialty (MOS) of 11B (Infantryman) on 5 January 1976. 4. On 8 February 1976, his duty status was changed from present for duty (PDY) to absent without leave (AWOL). On 24 February 1976, his duty status was changed from AWOL to PDY. The applicant surrendered to military authorities in Fort Knox, Kentucky. 5. On 22 March 1976, his duty status was changed from assigned not joined to AWOL. He had departed AWOL while in transit to his unit. On 4 May 1976, his duty status was changed from AWOL to departure. 6. On 5 May 1976, the Personnel Control Facility commander preferred court-martial charges against the applicant for being AWOL from on or about 22 March 1976 to on or about 4 May 1996 and from on or about 8 February 1976 to on or about 24 February 1976. 7. Sometime after 5 May 1976, the applicant signed a form stating he understood, if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an undesirable discharge certificate. He stated he understood he would be deprived of many or all Army benefits. He included a statement saying he had a few serious family problems causing his mother and him to have nervous problems. His mother was disabled and needed his support as her oldest son. His mother was his main reason for not adapting to the Army life, causing him to leave to help her. He believed men like him were not needed in a strict and responsible life such as the Army. 8. On 6 May 1976, a Defense Counsel questionnaire and Sworn Statement was completed on the applicant and states, he had been serving in the Army since 21 October 1975 and had two AWOLs on for 16 days and on from 24 March to 5 May. 9. On 6 May 1976, after consulting with counsel, the applicant requested discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations). He stated no one had subjected him to coercion, and counsel had advised him of the implications of his request. The applicant elected to submit a statement in his own behalf; however, the statement was not available for the Board's consideration. 10. On 12 May 1976, the applicant underwent a Report of Medical Examination, which shows the applicant had no medical conditions and was qualified for separation. 11. On 20 May 1976, he completed a Request for Leave, requesting excess leave from 21 May 1976 to 20 June 1976. 12. On 21 May 1976, the applicant completed a Statement of Medical Condition stating there had been no change in his medical condition. 13. The applicant's chain of command recommended approval of the applicant's request for discharge and on 25 June 1976, the appropriate separation authority approved the applicant's separation request and directed the applicant's undesirable discharge under other than honorable conditions. 14. On 12 August 1976, the applicant was discharged accordingly. His DD Form 214 shows he completed 7 months and 25 days of his 3-year enlistment contract. He had lost time from 8 February 1976 to 23 February 1976 and from 22 March 1976 to 3 May 1976 for a total of 57 days. He was awarded or authorized the Expert Marksmanship Badge (M-16), Expert Marksmanship Badge (Hand Grenade), and 2 Class Badge (M60). 15. The applicant requests an upgrade of his discharge to get medical and dental benefits. a. During the applicant's era of service, Soldiers charged with Uniform Code of Military 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). b. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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, the record of service, and nature of his misconduct and the reason for his separation. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in- service mitigation to overcome the misconduct. 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. Therefore, relief was denied. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XXX 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, 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 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, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. An honorable discharge was a separation with honor. Separation authorities were to conditions the issuance of an honorable discharge based upon proper military behavior and proficient duty performance. In addition, separation authorities could characterize a Soldier's service as honorable based on conduct ratings of at least "Good"; efficiency ratings of at least "Fair"; no general court-martial, and no more than one special court-martial conviction. b. 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. c. Chapter 10 permitted a Soldier to request discharge for the good of the service when 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210009311 1 ARMY BOARD FOR CORRECTION OF MILITARY RECRODS RECORD OF PROCEEDINGS 1