IN THE CASE OF: BOARD DATE: 20 October 2022 DOCKET NUMBER: AR20220003087 APPLICANT REQUESTS: reconsideration of his previous request to upgrade his under other than honorable conditions discharge to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 AR20180014452 on 29 August 2019. 2. The applicant states, in effect, he is requesting an upgrade of his under other than honorable conditions discharge to under honorable conditions (general). His active duty service has been deemed honorable for Department of Veteran Affairs (VA) purposes and he believes his character of discharge should reflect the same. He was unaware of the discharge upgrade process. 3. The applicant's service records contain the following documents for the Board's consideration: a. DD Form 4 (Enlistment Contract), which shows on 6 December 1972, the applicant enlisted in the Regular Army for a period of 3 years. b. DA Form 20 (Enlisted Qualification Record) shows he entered basic combat training on 14 December 1972 and advanced individual training on 25 February 1973. c. DA Form 268 (Report for Suspension of Favorable Personnel Actions) dated 6 March 1973 shows it was an initial report. The applicant departed absent without leave (AWOL) at 1000 hours on 28 February 1973. d. DA Form 268 showing an initial flagging date of 6 March 1973, and this was a final report. The applicant was dropped from rolls (DFR). e. On 3 April 1973, a Commander's Inquiry was completed and states, in effect: (1) An investigation was conducted to determine the reason the applicant went AWOL and was subsequently DFR. (2) There were no statements concerning any difficulties, which may have involved the applicant. (3) There were no known competent witnesses or close friends that may have any pertinent information or expected testimony. (4) There was no evidence or indication of foul play. (5) There was no evidence of intent not to return. (6) There was no pertinent evidence found among the applicant's personal effects. (7) The applicant departed AWOL on 28 February 1973. On 19 March 1973, a letter was sent to the next of kin. f. DA Form 188 (Extract Copy of Morning Report), dated 4 April 1973, shows the applicant went AWOL on 28 February 1973 and was DFR on 30 March 1973. g. DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) shows the applicant was returned to duty after being apprehended by civil authorities on 12 June 1973. h. On 22 June 1973, he consulted with legal counsel and was advised of the basis for the trial by court-martial and his available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel), chapter 10. He acknowledged he could be ineligible for many or all Army and/or Veterans Affairs Benefits and opted to submit a statement on his own behalf, which states, in effect: (1) He makes the statement voluntarily. (2) He thought he could make it in the Army, but he found out he could not. (3) He went AWOL because of family reasons and other reasons. His mind just could not adjust to the Army. He just wanted to be with his family. (4) His mother said it would be best if he got out of the Army because he could not make it and because of the family reasons. (5) He did not want to remain in the Army because of his family problems and he could not adjust to it and there were other reasons. (6) He just wanted to go home to his family and would try to get some kind of a job. He had one lined up if he could get home. i. On 26 June 1973, the applicant completed an SF 93 (Report of Medical History). The doctor annotated there was no residual disability, and he had no illnesses during service. On the same day, an SF 88 (Report of Medical Evaluation) was completed and shows the applicant was qualified for separation. j. DD Form 458 (Charge Sheet) shows on 28 June 1973, the Commander of United States Army Personnel Control Facility, Fort Gordon, GA, preferred one charge of AWOL, from on or about 28 February 1973 to on or about 12 June 1973, against the applicant. k. On 2 July 1973, a Commander's Report was completed and shows the applicant was allegedly AWOL from on or about 28 February 1973 to on or about 12 June 1973. He had no convictions by Court-Martial and no nonjudicial punishments. The commander recommended the applicant be discharged and that he receives an undesirable discharge. On 5 July 1973, the intermediate commander recommended the applicant be discharged and that he receives an undesirable discharge. l. On 9 July 1973, the appropriate approval authority approved the applicant's request for discharge and directed the applicant receive an undesirable discharge. m. On 26 July 1973, the applicant was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), which shows he completed 4 months and 7 days of net service this period. He had lost time from 28 February 1973 through 11 June 1973. His character of service was under other than honorable conditions. 4. The applicant indicated his discharge was considered honorable for VA purposes; however, he did not provide any documentation showing he received benefits from the VA. 5. On 16 October 2018, the applicant submitted a DD Form 149 to the Board requesting an upgrade of his discharge. On 29 August 2019, the Board determined relief was not warranted. The applicant's contentions and the medical advisory opinion were carefully considered. The Board applied Department of Defense standards on liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The advisory official found no behavioral-health mitigating factors to his misconduct. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the lengthy period of AWOL, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of his misconduct. The Board denied the applicant's request. BOARD DISCUSSION: The Board carefully considered the applicant's request, 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. The Board found insufficient evidence of in-service mitigating factors and 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 the character of service the applicant received upon separation was not in error or unjust. 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20180014452, dated 29 August 2019. 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. 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. Issuance of an honorable discharge was conditioned upon proper military behavior and proficient duty performance. A Soldier's service was to be characterized 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 Uniform Code of Military Justice 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 general discharge, if warranted. 2. The Manual for Courts-Martial Table of Maximum Punishments showed Article 86 (AWOL for more than 30 days), UCMJ, included a punitive discharge. 3. 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) AR20220003087 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1