IN THE CASE OF: BOARD DATE: 3 March 2022 DOCKET NUMBER: AR20210014446 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) in lieu of DD Form 149 (Application for Correction of Military Record) * DD Form 149 (Application for Correction of Military Record) * Criminal Record Search * Letters of Support * DD Form 214 (Report of Separation from Active Duty) 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 AR20040009143 on 12 July 2005. 2. The applicant states, in effect: a. He requests an upgrade of his discharge. When he was discharged, he was young and did not understand the consequences of his actions. b. As he's aged, he understands what he did was wrong and has wished, on many occasions, to go back and undo his mistakes. He's provided letters of support from people who have known him over the years and they can attest to the man he is today. c. He requests not to be judged on the person he was in 1975. but to be judged on the man he is today. He did not understand the consequences of what under other than honorable conditions meant. He spoke with everyone in his chain of command to get a better understanding, but he was told to accept it. 3. The applicant provides the following documents, not contained in his service record, for the Board's consideration: a. A State of Criminal Record Search, which shows the applicant was charged with assault by pointing a gun, assault inflicting serious injury, and hunting on the property of another for which he had to pay fines and restitution. b. Letters of support, which state, in effect: (1) From a friend who has known the applicant for more than 20 years. The applicant is a man of integrity. (2) From a friend who has known the applicant for four years. The applicant is an honest, truthful good friend. Those who know him have not said a bad word about him. (3) From a friend who has known him since the early 1970s. The applicant is an honest and trustworthy member of the community. He is a good friend and well respected by peers. (4) From a friend who has known the applicant over 30 years and has always been a good guy and willing to give help when needed. (5) From a friends who are honored to know the applicant and feel he is very deserving of the benefits due him as a US Veteran. In the 12 year they have known the applicant, he has raised two respectful and smart grandchildren. He has always been helpful to them in any way he was able. He is an honest and dependable person. (6) From a friend who has known the applicant for over 20 years. The applicant has shown many examples of loyalty, honesty, and sportsmanship. (7) From a friend who has known the applicant for more than 20 years. The application is always honest, trustworthy, and professional in all situations. He treats all with the same respect and courtesy he has shown the author. (8) From a friend who has known the applicant since 1999. The applicant has always displayed a high degree of integrity and responsibility during their business dealings. The applicant's good judgment and outlook ensure a logical and practical approach to their personal hunting endeavors. 4. On 20 July 1973, the applicant, at the age of 19 years, enlisted into the Regular Army for a period of 3 years. His DA Form 20 (Enlisted Qualification Record) shows he entered basic training on 30 July 1973 and AIT on 31 October 1973 for the military occupational specialty (MOS) of 11B Infantryman. 5. On 19 February 1974, special orders were published awarding him the MOS of 11B effective 21 February 1974. 6. On 22 March 1974, Unit Orders were published promoting the applicant to Private First Class (PFC). 7. On 26 November 1974, the applicant accepted nonjudicial punishment (NJP) for absenting himself from his unit from on or about 0630 22 November 1974 to on or about 0630 23 November 1974. His punishment was restriction and extra duty for seven days. He did not appeal his punishment. 8. On 4 March 1975, his duty status was changed from present for duty (PDY) to absent without leave (AWOL). On the same day a Report for Suspension of Favorable Personnel Actions was completed on the applicant for being AWOL. On 2 April 1975, his duty status was changed from AWOL to dropped from rolls (DFR). On 12 May 1975, his duty status was changed from DFR to PDY. 9. On 19 May 1975, a second lieutenant (2LT) completed a sworn statement, which states since arriving at the unit, the applicant had shown himself lacking in the qualities that make a good Soldier. He had shown his lack of motivation and responsibility. Through his many absences, missed formations, and continuously being on sick call he had not been an effective member of the unit. He was often insubordinate and disrespectful in his behavior. he had the ability to do well but had decided not to exercise this ability. He was counseled on numerous occasions with little results. Because of that, the 2LT thought it was unlikely the applicant would ever be of useful service to the the US Army. 10. On 27 May 1975, the applicant's commander preferred a charge of AWOL from on or about 4 March 1975 to on or about 12 May 1975 against the applicant. 11. On 13 June 1978, after consulting with counsel, the applicant voluntarily requested separation for the good of the service, and in lieu of trial by court-martial, per chapter 10 (Discharge for the Good of the Service), Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). In his request, the applicant affirmed no one had subjected him to coercion, and that his counsel had advised him of the implications of a separation under the provisions of chapter 10, Army Regulation 635-200; in addition, the applicant acknowledged he was guilty of the charge. The applicant elected to submit statements in his own behalf; however, the statements were not available for the Board's review. 12. The applicant's chain of command recommended approval of the applicant's request and on 28 August 1975, the appropriate approval authority approved his separation and directed the applicant be furnished an undesirable discharge. 13. The applicant's DD Form 214 shows he completed 1 year, 11 months, and 10 days of active service, with 70 days of lost time. He was awarded or authorized the National Defense Service Medal, Parachute Badge, and Marksman Marksmanship Badge (M- 16). 14. The applicant petitioned the Army Board for Correction of Military Records (ABCMR) and on 13 July 2005, he received a letter from the ABCMR stating the Board considered his application under procedures established by the Secretary of the Army and they denied his request. 15. 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 (MCM) then in effect authorized a punitive discharge for AWOL more than 30 days. 16. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense 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. 2. A majority of the Board found insufficient evidence of in-service mitigating factors and found the letters of support the applicant provided insufficient in support of a clemency determination. Based on a preponderance of evidence, a majority of the Board determined the character of service the applicant received upon separation was not in error or unjust. 3. The member in the minority found the letters of support the applicant provided sufficient to support clemency. The member in the minority determined the applicant's record should be corrected to show his character of service as under honorable conditions (general). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20040009143, dated 12 July 2005. 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 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, Table of Maximum Punishments showed a punitive discharge was an available maximum punishment for AWOL over 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) AR20210014446 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1