IN THE CASE OF: BOARD DATE: 27 April 2022 DOCKET NUMBER: AR20210016644 APPLICANT REQUESTS: * upgrade of his discharge to honorable * the pay he did not receive prior to his separation * get the 729 days of lost time removed from his record APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Certificate of Military Service * 2 x DD Form 215 (Correction to DD Form 214) * DD Form 214 (Report of Separation from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records 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, in effect he is requesting an upgrade of his discharge and to get the pay he did not receive at the time of his separation and to get the 729 days of lost time removed from his record. He had major mental depression when he was on active duty and he was treated poorly. He was told that he and his family could not get disability until his discharge was upgraded. His discharge was upgraded in 1975 and in 1978. He would like an honorable discharge. He received an honorable discharge when he reenlisted in 1969. He was denied a promotion and lost all control due to his mental health. 3. The applicant provides the following documents for the Board's consideration: a. A Certification of Military Service, dated 16 May 2006, which shows he served in the Regular Army from 29 May 1968 to 28 July 1969 and was honorably discharged. b. A DD Form 215, dated 3 November 1978, which states item 27 discharge reviewed under the provisions of PL 95-126 and a determination was made that characterization of service was warranted. c. A DD Form 215, dated 19 December 1975, which states item 30 added DD 1953A Clemency Discharge issued pursuant to Presidential Proclamation No. 4313. d. His DD Form 214. 4. On 29 May 1968, the applicant was inducted into the Army. As part of his enlistment, he underwent a Report of Medical Examination, which shows he was qualified for enlistment in the Army. His DA Form 20 (Enlisted Qualification Record) shows he entered basic training on 6 June 1968 and advanced individual training on 25 August 1968. 5. On 28 February 1969, a letter of appreciation was completed for the applicant stating he performed his duties in a manner deserving recognition. He proved himself capable of effectively operating and maintaining his vehicle, while in the field. 6. On 21 July 1969, the applicant made a statement, which states in effect: a. He left Germany on 10 June 1969 for leave. He had a great family problem. b. His mother had been sick for some time and while on leave, she got worse. The day of his departure, 10 July 1969, she was very sick but not in the hospital. c. He stayed for five extra days to make sure she was fine before he returned to his unit. He had supported his mother for approximately three years. d. When he returned to his unit, he received nonjudicial punishment (NJP), was restricted to the company area and fined $25.00 for one month. e. He had been in the Army for 15 months and this was the only NJP he had received. He had served with honor and if his request was favorably considered he planned to reenlist and continue to serve honorably. 7. On 28 July 1969, special orders were published honorably discharging the applicant. 8. On 17 October 1969, a Extract Copy of Morning Report was completed and shows the applicant went absent without leave (AWOL) on 17 September 1969 and was dropped from rolls (DFR) on 16 October 1969. 9. On 17 October 1969, the applicant's commander completed a memorandum subject Commanding Officer's Inquiry of the Unauthorized Absence of the applicant. The memorandum states in effect: a. The applicant departed to the Continental United States (CONUS) on leave on 3 August 1969. He was granted 10 days and a five day extension. On 17 September 1969, the applicant had not returned fro leave and was placed in an AWOL status. On 16 October 1969, the applicant was DFRd as a deserter. b. The applicant's father was deceased and his mother had a history of heart trouble. c. The applicant had no major difficulties in the unit, although after returning from a prior CONUS leave (11 June 1969 to 16 July 1969), the applicant stated he wanted to apply for a compassionate reassignment and was given a list of all requirements that would be needed for this reassignment. On 29 July 1969, the applicant reenlisted for three years and then went home on reenlistment leave on 3 August 1969. d. No pertinent evidence was discovered in the personal effects of the individual. There were no pertinent witnesses available. There was no evidence of foul play in the cause of the absence. e. A letter was written to the applicant's mother explaining his situation on the 10th day of his AWOL, but no reply had been received. There was not substantial evidence to indicate the applicant planned to return. 10. On 25 November 1969, the Executive Officer completed a memorandum subject conduct and efficiency rating pertaining to the applicant. His conduct and efficiency were both rated excellent. 11. On 6 March 1970, Special Court-Martial Orders were published showing the applicant was tried by Special Court-Martial on 3 March 1970. He pled guilty to and was found guilty of being AWOL from on or about 1 October 1969 until on or about 9 February 1970. He was sentenced to be confined at hard labor for one month, to forfeit $50 for two months, and reduction to the grade of Private/E1. On 6 March 1970, the Convening Authority approved the sentence and ordered it executed. 12. On 4 May 1971, the applicant's commander preferred a charge of AWOL from on or about 13 April 1970 to on or about 12 April 1971. 13. On 28 October 1971, the applicant underwent a Report of Medical Examination which shows the applicant was qualified for separation. His Report of Medical History shows he was in good health. 14. On 10 November 1971, the applicant's commander preferred an additional charge of AWOL from on or about 14 May 1971 to on or about 2 October 1971 against the applicant. 15. In an undated memorandum, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, chapter 10, and he elected to submit a statement on his own behalf, which states, in effect: a. The applicant requested discharge for the good of the service in lieu of trial by court-martial and he asked the approval authority to consider his statement. b. He entered the service on 29 May 1968, with the intention of fulfilling his enlistment and getting out of the Army honorably. He completed basic training at Fort Gordon, Georgia and from there went to Fort Knox, Kentucky for Advanced Individual Training as an Armor Intelligence Specialist. He stayed at Fort Knox for three week and completed a course in advanced personnel carrier training. c. He received his orders for Germany and went home on leave for 14 days. He arrived in Germany on 12 November 1968. He served 10 months in the company as a scout and the job he did was done with proficiency considering the little training he had received. During his stay at his unit, he received a letter of commendation from another company for driving his track vehicle during a field problem for officers and noncommissioned officers (NCO). The letter was put on the company bulletin board and one copy was sent to his battalion. d. He reenlisted for three years for some schools and after his reenlistment his trouble started. He went home on 29 August 1969. When he ws home, he got married. His wife was pregnant and they were having some problems, so he decided to stay until he could work out his problems. They still weren't cleared up, but he turned himself in. e. He received a special court-martial at Fort Meade, Maryland for AWOL. During this period, he received letters from his wife saying their bills were stacking up and she didn't have any money to go to the doctor. She was going to have the baby two months later. f. He went AWOL for the second time so that his wife and future baby could have the necessities. He got a job and supported his wife and during this period of her AWOL his daughter was born prematurely. His wife had to stay in the hospital for some time. This caused their bills to get larger. The job he was working at wasn't much, but it helped. After being AWOL for a year he and his wife had a long talk and he decided to turn himself in once more. g. His third AWOL was after being at the Personnel Control Facility for about three weeks and after calling and taking to his wife. She explained she didn't want him anymore because there was no income and she didn't want their daughter brought up in the world having nothing. She wanted the father of the baby to take care of them the way a husband and father should, and most of all the way a man should. h. This information pressured him into going AWOL a third time. He stayed five months trying to work out the problem, but he couldn’t until he was out of the Army. The only reason he was here so long was because he did try to make it in the Army, but he knew there was no way possible for him to make it. i. He asked the approval authority to take his family problems into consideration. It was where all his trouble began and for the good of the Army and his good, he requested to be discharged. 16. His chain of command, recommended approval of the chapter 10 with an undesirable discharge. On 22 December 1972, the appropriate approval authority approved the applicant's request to be discharged and directed he receive an undesirable discharge certificate. 17. On 3 January 1972, the applicant was discharged accordingly. His DD form 214 shows he had completed 5 months and 6 days of active e service this period with 1 year and 2 months of prior active service. He had a total of 729 days lost time and was not authorized any awards or decorations. 18. On 22 January 1973, the applicant received a letter, which states, in effect: a. The letter was in reference to his application for review of discharge in which Congressional interest had been expressed. b. The Army Discharge Review Board (ADRB), after careful consideration of his military records and all other available evidence had determined he was properly discharged. Accordingly, the Secretary of the Army had directed he be advised his request for a change in the type and nature of his discharge had been denied. c. The Congressman had been informed of the board's decision. 19. On 19 December 1975, the applicant received a DD Form 215, which was provided by the applicant. 20. On 15 January 1976, the applicant received a letter, which states, in effect: a. The author was glad to inform the applicant of him being awarded a clemency discharge pursuant to Presidential Proclamation 4313, dated 16 September 1974. b. His Clemency Discharge amending his Report of Separation was enclosed. Although his case was denied by the ADRB on 11 January 1973, he could apply to the ABCMR. The Board was not bound by the decision of the ADRB. 21. On 5 July 1977, the applicant received a letter, which states, in effect: a. His application, dated 20 April 1977, for consideration under the Department of Defense (DoD) discharge review program had been examined. The author was glad to inform the applicant that after reviewing the findings and conclusions of the ADRB, the Secretary of the Army directed the applicant be informed that his discharge under other than honorable conditions had been upgraded to under honorable conditions (general) effective 25 May 1977. b. If the applicant did not receive the full relief requested, he could request his case be reviewed again by a panel of the ADRB. 22. On 7 July 1978, the applicant received a letter from the ADRB which states in effect, a preliminary review of his discharge had been completed by the ADRB as required. As a result of the review, the board made a preliminary determination that he would not qualify for upgrading under the new uniform standards for discharge review. The action would not change the character of discharge awarded to him under the Special Discharge Review Program. 23. On 25 October 1978, the applicant received a letter from the ADRB, which stated they regretted to inform him the ADRB could not affirm his upgraded discharge under review standards. The action did not change the discharge he had at the time, but may impact his ability to acquire Department of Veteran Affairs (VA) benefits. 24. On 3 November 1978, the applicant was issued a DD Form 215, which was provided by the applicant. 25. On 15 November 1978, the applicant received a letter which states in effect the previous upgrading of his discharge had been re-reviewed by the ADRB. As a result of this review, the board determined he did not qualify for upgrading under the new uniform standards for discharge review. Accordingly, his upgraded discharge was not affirmed. The decision in no way changed or modified the upgraded discharge he had previously received. 26. On 29 September 1989, the applicant was issued a Certification of Military Service for his service from 29 May 1968 to 28 July 1969 for which he was honorably discharged. On 16 May 2006, he was issued an additional Certification of Military Service for the same time period. 27. The applicant petitioned the ABCMR for in effect, that his undesirable discharge, which was upgraded to under honorable conditions (general) by the DoD Special Discharge Review Program be affirmed. The ABCMR denied his request. 28. The applicant requests an upgrade of his under honorable conditions (general) discharge, the pay he did not receive at his separation, and to get the 729 days removed from his DD Form 214. He is unable to get disability unless his discharge is upgraded. a. The applicant provides an Honorable Certification of Military Service, two DD Forms 215, and a copy of his DD Form 214. b. The applicant's service records show he was tried by Special Court-Martial for being AWOL and requested to be discharged in lieu of trial by court-martial for being AWOL. His DD Form 214 shows he had a total of 729 days lost time. c. There is no evidence in the applicant's service record showing he was due pay at the time of his discharge. d. Presidential Proclamation 4313 was issued on 16 September 1974 by President Ford. It identified three categories of persons and permitted them to apply for clemency discharge. (1) The applicant categories were: * civilian fugitives who were draft evaders * members of the military who were still AWOL * former military members who had been discharged for desertion, AWOL, or missing movement. (2) Those individuals who were AWOL were afforded the opportunity to return to military control and accept an undesirable discharge or stand trial. Those who elected to earn a clemency discharge (AWOL’s and discharged members) could be required to perform up to 24 months alternate service. Upon successful completion a clemency discharge would be issued. e. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. Soldiers could request separation when charges have been preferred against them for which under the Uniform Code of Military Justice (UCMJ) and Manual for Courts-Martial (MCM) included a bad conduct or dishonorable discharge (punitive discharge). Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. A medical examination was required for separation under chapter 10, a mental status evaluation was not required. f. According to the Manual for Courts-Martial, being AWOL for more than 30 days, included the punishment of a bad-conduct or dishonorable discharge. h. Title 31, U.S. Code, section 3702, also known as the Barring Statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the Government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. i. 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: 1. 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 to weigh a clemency determination. The Board noted, the applicant provided insufficient evidence of post- service achievements or character letters to show honorable conduct that might have mitigated the discharge characterization. 2. The Board agreed there was no evidence in the applicant's service record showing he was due pay at the time of his discharge. Evidence in the record shows the applicant was AWOL numerous times for a total of 729 days. There is no error or injustice in the calculation of the applicant’s lost time. Based in the 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 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. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1. Title 10, U.S. 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 Army Board for Correction of Military Records (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 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization will be conditioned upon proper military behavior and proficient performance of duty during the member's current enlistment of current period of service with due consideration for the member's age, length of service, grade, and general aptitude. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM) included a bad conduct or dishonorable discharge (punitive discharge) could submit a request for discharge in lieu of trial by court-martial. 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. 3. Per Manual for Courts-Martial, AWOL for more than 30 days punishment included a punitive discharge. 4. Title 31, U.S. Code, section 3702, also known as the Barring Statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the Government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. 5. 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) AR20210016644 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1