IN THE CASE OF: BOARD DATE: 27 April 2022 DOCKET NUMBER: AR20210013551 APPLICANT REQUESTS: reconsideration of his previous request to upgrade his under other than honorable conditions discharge to general, under honorable conditions, or to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) x2 * Department of Veterans Affairs Correspondence * Character Reference FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2001065190 on 26 February 2002 and AR20170007943 on 2 July 2019. 2. The applicant states he is requesting an upgrade of his discharge so that he may be eligible for Department of Veterans Affairs (VA) benefits. His command was fair; he is asking for relief. He made a mistake in judgement that has cost him dearly. He was a young married man, his wife was diagnosed with mental illness, and he went home to see about her. She threatened to commit suicide if he left and he was afraid. They were later divorced. He wanted a military career and he regrets his decision. She kept calling the chaplain. His discharge has made things difficult. He is age 71 with health issues and limited income. He is unable to take advantage of VA benefits; he would like to have burial privileges. a. His income is not enough to afford funeral expenses and assistance with basic necessities. b. He has tried to be a productive citizen. He has little education and limited work skills. An upgrade will allow him to live with dignity and not be a burden to his family. 3. The applicant provided: a. VA Correspondence, dated 31 August 2017, informing him that his military service was dishonorable for VA purposes and he was not entitled to a VA pension. b. A character reference from Ms. , who states she is an honorably discharged Navy veteran and she is a VA employee. She met the applicant in 2017 when her father was in a local hospital and the applicant was his neighbor. She lived in a different State and the applicant was very kind toward her father. He had very little food and lived on a fixed income, yet he cooked and brought food to her father, despite her father’s ugly demeanor. The applicant never lost his patience, he continued to show love, grace, and kindness. The applicant took the first job he was offered by the VA (records tech). The applicant is still that kind and gentle spirit. She believes the heart of a man shows his true character. He left his unit to care for a mentally ill wife. His judgement was off in the moment. The upgrade will improve his quality of life. 4. On 6 August 1974, he enlisted in the Regular Army for 3 years. He was assigned to Fort Leonard Wood, MO, for completion of training. He was not awarded a military occupational specialty (MOS). 5. He left his unit in an absent without leave (AWOL) status from 13 September to 20 December 1974. 6. A Federal Bureau of Investigation Report, dated 20 December 1974, shows he was apprehended at his place of employment (Murray Envelope Corporation), Hattiesburg, MS, on this date. At the time he was awaiting trial on charges of accessory for burglary. A Forest County Grand Jury warrant was issued on 1 November 1974 and he was returned to military control at the U.S. Army Personnel Control Facility (PCF), Fort Gordon, GA. 7. A Charge Sheet, dated 7 January 1975, shows while assigned to the PCF, he was charged with being AWOL from 13 September to 20 December 974. 8. On 10 January 1975, following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). There is no evidence that he submitted statements in his behalf. 9. Both the applicant’s immediate and intermediate commanders recommended approval with an Undesirable Discharge Certificate. 10. On 30 January 1975, the separation authority directed the applicants reduction to private/E-1 and approved his request for discharge for the good of the service under the provisions of chapter 10, AR 635-200, with an Undesirable Discharge Certificate. 11. Accordingly, on 13 February 1975, he was discharged. His DD Form 214 confirms he completed 3 months of active service and 98 days of lost time. He has no awards listed. His DD Form 214 also shows in: * Authority and Reason, “Chapter 10, AR 635-200, SPD: KFS [Conduct Triable by Court-Martial]” * Character of Service, “Under Other Than Honorable Conditions” * Remarks, “Item 21: 98 Days Lost Under 10 USC 972 From 740913 to 741219” 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 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 at any time after court-martial charges were preferred, commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. 13. The applicant provided a VA document showing his current discharge is dishonorable for VA purposes and he is not entitled to a VA pension. He also provided a character reference attesting to his kindness, generosity, and humanity, and how an upgrade of his DD Form 214 will improve his quality of life. His submissions were provided to the Board in its entirety. 14. The applicant requests an upgrade so that he may receive benefits. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits. During the period of service under review, he completed 3 months of his 3-year service obligation. In reaching its determination, the Board can consider the applicant’s petition, his contentions, submissions, and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations for applicant's requesting upgrade of their characterization of service. Upon review of the applicant’s petition and available military records the Board determined there was sufficient evidence to mitigate the applicant’s AWOL. The Board found the post service character letter of support noteworthy to weigh a clemency determination. Therefore, the Board found that the applicant’s case warrants clemency with an upgrade of his discharge to under honorable (general) conditions. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to grant relief and amend ABCMR's decision in Docket Number AR2001065190 on 26 February 2002 and AR20170007943 on 2 July 2019. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 for the period ending 13 February 1975 showing his characterization of service as General Under Honorable Conditions. 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): NA 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 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. 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 regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states: a. A Chapter 10 is applicable to members who had committed an offense or offenses for which the authorized punishment 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. 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. 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. 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) AR20210013551 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1