IN THE CASE OF: BOARD DATE: 30 September 2022 DOCKET NUMBER: AR20220002982 APPLICANT’S REQUEST: * Reconsideration of his request for upgrade of his under honorable conditions (general) discharge. * Correction of his pay grade on his DD Form 214 (Certificate of Release or Discharge from Active Duty). * Correction of his net active service for his period of service on his DD Form 214. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 * Self-authored statement * DA Form 2139 (Military Pay Voucher) * Three, Standard Form 180 (Request Pertaining to Military Records) 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 AR 20170010932 on 12 June 2018. 2. The applicant seeks reconsideration of his request for a discharge upgrade to honorable and two corrections to his DD Form 214. a. He contends that block 4b on his DD Form 214 shows pay grade E01, which conflicts with his last pay statement, dated 14 March 1971. His E02 stripe was not taken away so he feels the DD Form 214 should reflect pay grade E02. b. He contends that block 12 on his DD Form 214 shows that his net active service as 4 months and 8 days; however, his active service was longer than that. c. He submitted two requests to obtain an honorable discharge certificate and medals that he was supposed to receive; however, he did not get a response to either request. 3. The applicant was inducted into the Army of the United States on 4 April 1968 with a two-year service obligation. He did not complete initial entry training, therefore, he was not awarded a military occupational specialty. There is no evidence of advancement beyond private/E-1. 4. On or about 24 May 1968, the applicant was reported as absent without leave (AWOL) and remained absent until to on or about 7 November 1968. 5. Before a special court-martial on or about 29 November 1968, at Fort Belvoir, Virginia, the applicant was found guilty of being AWOL from on or about 24 May 1968 to on or about 7 November 1968. The court sentenced him to hard labor for three months without confinement. 6. On 23 December 1968, the sentence was approved. 7. Special Court-Martial Order Number 143, Headquarters, U.S. Army Engineer Center Brigade, dated 5 February 1969, shows the unexecuted portion of the approved sentence to perform hard labor without confinement for 3 months was suspended effective 5 February 1969. 8. On 11 January 1971, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 10 February 1969 through on or about or about 18 December 1970. 9. The applicant's DA Form 20 (Enlisted Qualification Record) shows in item 44 (Time Lost) he accrued 933 days of lost time during the following periods for the indicated reasons: * 24 May 1968 - 6 November 1968, 167 days of AWOL * 7-12 November 1968, 6 days of civilian confinement * 13 November 1968 - 4 February 1969, 84 days of confinement * 10 February 1969 - 17 December 1970, 676 days of AWOL 10. On 15 January 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and of the procedures and rights that were available to him. Subsequent to this counseling, the applicant voluntarily requested discharge under the provisions Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge. 11. In his request for discharge the applicant acknowledged he understood that if he was discharged under other than honorable conditions, he would be deprived of many or all Army benefits, he may 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 law. He also indicated that he understood he may face substantial prejudice in civilian life because of a undesirable discharge. He elected to submit a statement on his own behalf. 12. In a letter to the Commanding General, Fort Belvoir, VA, dated 2 February 1971, the applicant informed the commander about the automobile accident that resulted in the death of his brother and serious injury to his mother and father. He explained that the accident had occurred during a trip they were making to visit him at Fort Bragg, NC, and that if he had not been at Fort Bragg his brother might not have died. He stated that while he was away from the Army he had helped out at home. Since the accident his father was drinking a lot and most of the time he did not work. The applicant stated he did not feel he could take the Army anymore and requested that the commander take his statement into consideration and accept his resignation. 13. On 3 February 1971, the applicant underwent a psychiatric evaluation which found him mentally capable to understand any administrative action or disposition as deemed appropriate by his command. 14. On 9 February 1971, the applicant's commander recommended his discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. 15. Subsequently, the separation authority approved the recommended action and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate) and reduction to the lowest enlisted grade. 16. The applicant was discharged on 4 March 1971. His DD Form 214 confirms he was discharged under the provisions of AR 635-200, Chapter 10. His service was characterized as under other than honorable conditions (UOTHC). He completed 4 months, and 8 days of net active service this period. The remarks section shows 675 days lost. He was awarded or authorized the National Defense Service Medal. 17. The applicant petitioned the ABCMR on 28 May 2010, requesting his undesirable discharge be upgraded to an honorable. The Board voted to deny relief and determined that the overall merits of this case are insufficient as a basis for correction. 18. The applicant petitioned the ABCMR on 31 October 2012, for reconsideration of his request to have his undesirable discharge be upgraded to an honorable. The ABCMR did not consider his application because his request for reconsideration was not received within one year of the ABCMR’s earlier decision. 19. The applicant petitioned the ABCMR on 27 March 2017, for reconsideration of his request to have his undesirable discharge be upgraded to an honorable. The Board voted to deny relief and determined the evidence presented does not demonstrate the existence of a probable error or injustice. 20. Memorandum, dated 9 February 2019, the Deputy Assistant Secretary of the Army found there was sufficient evidence to grant relief and directed that all records of the applicant be corrected by issuing a DD Form 214 to show his character of service as General, Under Honorable Conditions for the period of service ending on 4 March 1971. 21. On 23 February 2019, the applicant’s DD Form 214 was corrected to reflect his character of services as under honorable conditions (general). Further, remarks section corrected to show an additional 258 days lost, subsequent to normal expiration term of service (ETS): 4 April 1970 to 17 December 1970. 22. The applicant provides the following: a. Self-authored letter requesting investigation of several discrepancies on his DD Form 214. He contends that his pay grade and net active service are incorrect. Further, he made two prior requests to obtain an honorable discharge certificate and medals; however, he did not get a response to either request. He appreciates the Board for investigating these issues and sending him the medals and certificates. b. Standard Form 180 (Request Pertaining to Military Records), three were submitted on behalf of the applicant to the National Archives and Records Administration (NARA) requesting his DD Form 214, medals, and an honorable discharge certificate. c. DA Form 2139 (Military Pay Voucher) certified 3 March 1971, shows the applicant’s basic pay grade as E-2 (E02). 23. AR 635-200 sets forth the basic authority for time lost to be made good. The version in effect at the time provided that: Every individual in active Federal Service who renders himself unable for more than 1 day to perform duty will be liable, after a return to full duty status, to serve for such period as is necessary to complete his full term of service or obligation, exclusive of such time lost. a. Lost time in the sense of this regulation refers to periods of more than one day during which an individual on active duty is unable to perform duty because of -(1) Desertion; (2) Absence without proper authority; (3) Confinement under sentence; (4) Confinement while awaiting trial or disposition of individual's case; (5) Intemperate use of drugs or alcoholic liquor; (6) Disease or injury, the result of individual's own misconduct. b. Time lost during an enlistment or induction period will be made good at the end of the enlistment or induction period, except that when an enlistment or period of induction is extended by law, time lost will he made good at the end of the extension. This requirement may be waived when the discharge authority considers that because of unusual or extenuating circumstances waiver of time lost is in the best interest of the individual and the Government. 24. 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. 25. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. BOARD DISCUSSION: After reviewing the application, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was charged with commission of an offense punishable under the UCMJ with a punitive discharge. After being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial and carry an under other than honorable conditions characterization of service. a. The Board previously upgraded his character of service from under other than honorable condition to general, under honorable conditions. The Board determined that in view of his extensive AWOL/lost time, his service clearly did not rise to the level required for an honorable characterization. The applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the upgraded character of service the applicant received upon separation was not in error or unjust. b. There is no evidence in the record and the applicant provides none to show he was advanced to a grade beyond that of private/E-1. Additionally, his multiple periods of AWOL throughout his military service would have disqualified him from any promotions due to being flagged/in a non-promotable status. c. The applicant entered active duty on 4 April 1968 with a two-year service obligation. He was discharged on 4 March 1971. His DD Form 214 shows he completed 4 months and 8 days of net active service this period. The remarks section shows 675 days lost. By regulation, lost time is subtracted from the net active service completed during the period covered by the DD Form 214. His AWOL is considered lost time. 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 to amend the decision of the ABCMR set forth in Docket Number AR20170010932 on 12 June 2018. 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 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. 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. b. 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. c. Chapter 10 provided that a member who had 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 in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 3. 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. 4. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220002982 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1