IN THE CASE OF: BOARD DATE: 16 March 2022 DOCKET NUMBER: AR20210013826 APPLICANT REQUESTS: upgrade of his character of service from under other than honorable conditions to general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); 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 states he never had to go to court upon being discharged from service or the military. 3. Review of the applicant’s service record shows: a. He enlisted in the Oklahoma Army National Guard (OKARNGUS) on 24 June 1973. b. He entered active duty for training (ADT) on or about September 1973. He completed training and was awarded military occupational 11B (Light Weapons Infantryman). His rank was private (PV2)/E-2. He was released from ADT and returned to the control of the ARNG. c. In the OKARNG, he was assigned to Company A, 1st Battalion, 179th Infantry, Briston, OK. However, he had a history of unsatisfactory participation in training. d. On 1 December 1974, the applicant's immediate commander recommended the applicant be ordered to involuntary active duty under the provisions of, Army Regulation (AR) 135-91 (Army Regulation-Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) for unsatisfactory participation. The commander investigated the circumstances surrounding the applicant’s absence and found no emergency of cogent reason existed to account for his absence from drills. In addition to address to which all mail and correspondence was forwarded, is in fact the address that the individual furnished the unit as his address. e. On 9 June 1975, the applicant was advised that he had been submitted for involuntary order to active duty with the Regular Army for failure to participate satisfactorily in scheduled ARNG assemblies, in accordance with AR 135-91, and his tour of active duty, when added to his prior period of active duty for training, would total twenty-four months. The applicant was advised of his right to above order to active duty. His written appeal must be received no later than 15 days from the date of the letter. f. Letter Orders Number E-10-169, dated 20 October 1975, ordered the applicant active duty. Effective 24 November 1975. g. Special Orders Number 261, 20 October 1975, OKARNG, discharged him from the ARNG with a characterization of service as general, under honorable conditions. Reason: involuntary active duty-failure to participate. Effective 23 November 1975. h. He was discharged from OKARNG on 23 November 1975. His NGB Form 22 (ARNG Report of Separation and Record of Service) shows he completed 2 years and 5 months of ARNG service. He was involuntarily ordered to active duty due to non- participation. i. On 11 November 1975, he was ordered to active duty at Fort Leonard Wood, MO. He failed to report to his unit. On the same date he was reported in an absent without leave (AWOL) status and dropped from the rolls as a deserter (DFR) on 23 December 1975. k. On 5 January 1976, court-martial charges were preferred against him. His DD Form 458 (Charge Sheet) shows he was charged with one specification of AWOL from 24 November 1975 and did remain so absent until or about a future date. l. On 7 July 1976, he was apprehended by civilian authorities and returned to military control on 8 July 1976 in OK. m. On 12 July 1976, the applicant consulted with legal counsel. He was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested voluntary discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), Chapter 10, for the good of the service-in lieu of trial by court-martial. In his request for discharge he indicated that: * he was making this request of his own free will and had not been subjected to any coercion by any person * he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge * he acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law * he did not elect to submit a statement in his own behalf n. On 13 July 1976, court-martial charges were preferred against him. His DD Form 458 (Charge Sheet) shows he was charged with one specification of AWOL from 24 November 1975 to on or about 7 July 1976. o. On 14 July 1976, he underwent a mental status evaluation. His DA Form 3822-R (Report of Mental Status Evaluation), shows he had significant mental illness: p. Orders 19-28, dated 19 July 1976, Headquarters, U. S. Army Field Artillery Center, Fort Sill, OK, assigned him to the U.S. Army Personnel Control Facility, Fort Sill. Effective date 9 July 1976. q. On 26 July 1976, his immediate commander recommended approval of the discharge and stated the request was administratively correct and meet the requirements for discharge under the provisions of Chapter 10, AR 635-200. The applicant was charged with an AWOL of 226 days. He opined that the applicant had been apprehended by federal authorities. Ordered to Active Duty on 24 November 1975. The reason for AWOL: personal problems. He was ordered to active duty and failed to report to his post. The commander recommended issuance of an undesirable discharge. He surrendered to military authorities and he had been unable to adjust to military life. Rehabilitation efforts considered futile. r. Orders 28-24, dated 28 July 1976, Headquarters, U. S. Army Field Artillery Center, Fort Sill, reduced him to private/E-1. s. On 28 July 1976, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service, and directed the applicant be reduced to private/E-1 and that he be issued an (undesirable) under other than honorable conditions discharge certificate. t. Orders 34-226, dated 3 August 1976, Headquarters, U. S. Army Field Artillery Center, Fort Sill, assigned him to the separation transfer point for separation processing and Orders 34-225, dated 3 August 1976, discharged him effective 4 August 1976. u. He was discharged on 4 August 1976. His DD Form 214 (Report of Separation from Active Duty) shows his rank as private/E-1 and that he was discharged in accordance with Chapter 10 (for the good of the service-in lieu of trial by court-martial) of AR 635-200, with an under other than honorable conditions characterization of service. He completed 27 days of active service. It also shows: * Block 9 (c) (Authority and Reason) AR 635-200, Chapter 10 * Block 9 (e) Character of Service) Under Other Than Honorable Conditions * Block 18 (b) (Prior Active Service) 4 months and 7 days * Block 18 (d) (Prior Inactive Service) 2 years and 22 days * Block 21 (Time Lost) 227 days * Block 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) None v. There is no evidence the applicant petitioned the Army Discharge Review Board for review of his discharge. 4. By regulation (AR 635-200), a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. A discharge under other than honorable conditions is normally considered appropriate. 5. By regulation, (AR) 635-5, (Separation Documents) of the DD Form 214: a. Block 9 (c) (Authority and Reason) Do not enter a narrative reason for separation in this item. Enter statutory and/or regulatory authority for separation and the SPD (AR 635-5-1). b. Block 9 (e) (Character of Service) of the DD Form 214, Enter in all capital letters. Authorized entries are: (1) HONORABLE (2) UNDER HONORABLE CONDITIONS (3) UNDER OTHER THAN HONORABLE CONDITIONS (4) DISHONORABLE (5) TO BE DETERMINED (See para 1-5b, AR 635-100) (6) NOT APPLICABLE (For Release from Custody and Control of the Army due to voidance of fraudulent enlistments). 6. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not 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 requests for upgrade of his characterization of service. Upon review of the applicant’s petition and available military records, the Board found insufficient evidence of in-service mitigating factors for the misconduct. The Board noted, the applicant no provided post-service achievements or character 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 and denied 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 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, United States Code, 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 (AR) 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the regulation in effect at the time (and the version currently in effect provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a of the regulation currently in effect provides that an honorable discharge is a separation with honor and entitles the recipient to benefits 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. c. Paragraph 3-7b of the regulation currently in effect provides that 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. Army Regulation (AR) 635-5 (Separation Documents) prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established the standardized policy for the preparation of the DD Form 214. The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active service. The general instructions stated all available records would be used as a basis for preparation of the DD Form 214. The information entered thereon reflects the conditions as they existed at the time of separation. It states for: a. Block 9 (c) (Authority and Reason) Do not enter a narrative reason for separation in this item. Type a dashed line (---) on all copies furnished the individual and Veterans Administration (see fig. 2-2). Copies to be filed in the MPRJ for retention by the Army, or which are furnished State Adjutants General or CONUS Army commanders will be completed as follows: Enter statutory and/or regulatory authority for separation and the SPD (AR 635-5-1). b. Block 9 (e) (Character of Service) of the DD Form 214, Enter in all capital letters. Authorized entries are: (1) HONORABLE (2) UNDER HONORABLE CONDITIONS (3) UNDER OTHER THAN HONORABLE CONDITIONS (4) DISHONORABLE (5) TO BE DETERMINED (See para 1-5b, AR 635-100) (6) NOT APPLICABLE (For Release from Custody and Control of the Army due to voidance of fraudulent enlistments). 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 based on 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) AR20210013826 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1