IN THE CASE OF: BOARD DATE: 8 September 2022 DOCKET NUMBER: AR20220002431 APPLICANT’S REQUEST: Reconsideration of his previous request to upgrade his under other than honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge) 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 AR20090020879 on 24 June 2010. 2. The applicant states, in effect: a. His discharge was inadequate because it was based on one isolated incident. Based off his time in the military, he was an outstanding Soldier: look at his records. He was drafted, but probably would have joined sooner or later. He went home on leave, his mother was in crisis, he tried to call his commander for an extension; however, he received no information back. He was planning on returning. b. His wife wants him to get an honorable discharge and change his undesirable discharge because she comes from military; her dad served for over 35 years. He has two sons; one was in the Marines for over twenty years and the other in the Navy for five years. His wife says he is leaving a legacy for seven grandsons, and she wants a clean record of their lives. c. He understands now that his duties were to his county when he joined and raised his right hand to the American flag. He was 18 years old at that time and he didn’t understand that his life was never going to be the same again. He didn’t know his right foot from his left foot, but now he understands that he should have served his country. Sometimes he looks back and sees that his country deserted him with one incident; like when he was on base training. He had to prove himself to his commander that he was a man, not a machine. He is a better person today. 3. The applicant was inducted into the Army of the United States on 11 June 1970. 4. On 26 August 1970, the applicant accepted non-judicial punishment (NJP) under Article 15, of the Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 20 July 1970 to 25 August 1970. His punishment included forfeiture of $29 pay for one month. 5. On 9 September 1970, he went AWOL and remained absent until he was apprehended by civil authorities and returned to military control on 19 November 1970. 6. On 10 December 1970 before a special court-martial, the applicant was arraigned and tried for violation of the UCMJ, Article 86. He was charged with one specification of being AWOL from on or about 9 September 1970 to on or about 19 November 1970. a. He plead guilty to the specification and the charge. He was found guilty and sentenced to confinement at hard labor for 90 days and forfeiture of $35 per month for three months. b. His sentence was approved on 14 December 1970. 7. On 9 February 1971, the applicant went AWOL and remained absent until he was apprehended by civil authorities and returned to military control on 7 September 1972. Court-martial charges were preferred against him on 11 September 1972, for violation of the UCMJ, Article 86. 8. The applicant consulted with legal counsel on 11 October 1972 and was advised of the basis for the contemplated trial by court-martial; the maximum punishment authorized under the UCMJ; the possible effects of an undesirable discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He also acknowledged that he may encounter substantial prejudice in civilian life by reason of an undesirable discharge. b. He elected to submit statements in his own behalf wherein his defense counsel indicated the applicant had a 10th grade education, had only 2 good months in the Army, and had not finished basic training. He stated there was reason to believe, during his period of AWOL, that the applicant lived with his mother and helped with the younger members of his family. His counsel stated the applicant's inability to adapt to the military and the needs of his family warranted favorable consideration for discharge. 9. The separation authority approved the applicant's request for discharge on 1 November 1972, under the provisions of Army Regulation 635-200, Chapter 10, and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 10. Accordingly, the applicant was discharged on 1 November 1972. His DD Form 214 confirms he was discharged in the lowest enlisted grade and his service was characterized as under conditions other than honorable. He was credited with 5 months and 22 days of net active service and was awarded or authorized the National Defense Service Medal. 11. On 13 November 2009, the applicant petitioned the ABCMR for an upgrade of his discharge from general to honorable. The Board voted to deny relief and determined the evidence presented did not demonstrate the existence of a probable error or injustice. 12. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was/was not warranted. Based upon the short term of service completed prior to a pattern of misconduct leading to the applicant’s separation, the Board concluded there was insufficient evidence of an error or injustice warranting a change to the applicant’s characterization of service. 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, 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. Army Regulation 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-9d (Honorable Discharge). An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. Separation authorities could characterize a Soldier's service as honorable if he/she received at least "Good" for conduct, and at least "Fair" for efficiency. In addition, the Soldier could not have one general court-martial or more than one special court-martial conviction. b. Paragraph 1-9e (General Discharge). 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; commanders had to insure no one coerced the Soldier into submitting a request for discharge and that the Soldier had a reasonable amount of time to consult with counsel. If, after consulting with counsel, the Soldier chose to submit a separation request, he/she had to do so in writing, and the Soldier's counsel had to sign as a witness. Once the separation authority approved the Soldier's discharge request, an undesirable discharge was normally furnished, but the separation authority could direct either an honorable or a general discharge, if warranted. d. Chapter 18, currently in effect, provides in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders. 3. The Manual for Courts-Martial then in effect stated the punishment for violations of Article 86 (AWOL for 30 or more days) included a bad conduct discharge; when the AWOL period was terminated by an apprehension, a dishonorable discharge was authorized. 4. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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) AR20220002431 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20220002431 1 ABCMR Record of Proceedings (cont) AR20220002431 1