IN THE CASE OF: BOARD DATE: 22 February 2023 DOCKET NUMBER: AR20220007251 APPLICANT’S REQUEST: * Upgrade of his undesirable discharge under other than honorable conditions to an honorable character of service * Permission to appear personally before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) 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 he was an exemplary Soldier when it came to performing his duties. His chain of command gave him special assignments and numerous tasks that were above his pay grade; additionally, his leadership selected him to be the company commander's personal radio operator. a. The Army assigned him to Hawaii, and while there, his girlfriend in told him she was pregnant. He received authorization for leave and flew to in April 1973, and he and his girlfriend got married. b. The applicant returned to at the end of his leave, and he continued to work but became anxious and worried about his wife. He learned she was having a difficult pregnancy, and, later, she had a difficult delivery; he was unable to be there when their child was born. Because he had neither the rank nor sufficient time-in-service to get permission to move off-post, bringing his wife to was not an option. c. As a young father, the applicant felt he could not be a good Soldier and a good provider for his family, so he chose family and went AWOL (absent without leave). On his return to the Army, he asked for a reassignment to but they denied his request; they then offered him an early discharge under other than honorable conditions. The applicant believes now that the Army should have suggested a hardship discharge. 3. A review of the applicant's service records show: a. On 20 April 1972, the applicant enlisted into the Regular Army for 3 years; he was 19 years old. Upon completing basic combat training at Fort Knox, KY, orders transferred him to Fort Polk, LA to undergo advanced individual training (AIT) in military occupational specialty 11B (Light Weapons Infantryman). On 25 August 1972, the applicant graduated from AIT and his leadership promoted him to private first class (PFC); orders then reassigned him to an infantry battalion at Schofield Barracks, HI; he arrived at his new unit, on 3 October 1972. b. On 9 April 1973, the applicant's unit reported him as AWOL, and, effective 9 May 1973, dropped him from unit rolls. On 17 May 1973, the applicant surrendered himself to military authority at Fort Snelling, MN, and orders moved him to the U.S. Army Personnel Control Facility (PCF) at Fort Leonard Wood, MO; he arrived at the PCF, on or about 25 May 1973. c. On 10 June 1973, the Fort Leonard PCF showed the applicant in an AWOL status, and immediately dropped him from unit rolls. On 15 August 1973, the FBI arrested the applicant and returned him to military control; the FBI stated it had found the applicant in a county jail and noted he was an "Escape Risk." Orders transferred the applicant back to the Fort Leonard Wood PCF, and he arrived on or about 20 August 1973. d. On 27 August 1973, the PCF preferred court-martial charges against the applicant, showing two specifications for UCMJ Article 86 (AWOL); the applicant's charge sheet listed his absence from his unit in Hawaii, from 9 April until 17 May 1973 (38 days), and from the PCF, for the period 10 June to 15 August 1973 (66 days). e. On 5 September 1973, after consulting with counsel, the applicant voluntarily requested separation, under the provisions of chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request, the applicant affirmed no one had coerced him and counsel had advised him of the implications of his request. The applicant elected to submit a statement in his own behalf, and he provided the following: (1) The applicant declared he did not like all the drugs in the Army, and he could not cope with the people; this included both the enlisted Soldiers and the officers. He had tried the Army for a year, and he had worked his hardest to get along, but he just could not do it. (2) The applicant disclosed he had a wife and a child at home, and his wife was under a doctor's care; she sometimes had difficulty getting around. The applicant felt he was more needed at home than in the Army. In his opinion, the Army was "real good" for some people, but that it did not fit other persons. As such, he was asking the separation authority to grant his discharge request. f. On 18 September 1973, the separation authority approved the applicant's separation request and directed the applicant's undesirable discharge under other than honorable conditions; in addition, the separation authority ordered the applicant's reduction to the lowest enlisted grade. On 21 September 1973, orders discharged the applicant accordingly. g. The applicant's DD Form 214 shows he completed 1 year, 1 month, and 19 days of his 3-year enlistment contract, with two periods of lost time. Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) stated, "NONE." h. The applicant's DA Form 20 (Enlisted Qualification Record) displays the conduct and efficiency ratings given by his leadership from initial entry training to his infantry battalion assignment in Hawaii; until the applicant's AWOL, the applicant's chain of command rated his conduct and efficiency as "Excellent." 4. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 5. The applicant requests the upgrade of his under other than honorable conditions discharge to an honorable character of service. a. During the applicant's era of service, Soldiers charged with UCMJ violations, for which a punitive discharge was an authorized maximum punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and available in-lieu of trial by court-martial. b. The Manual for Courts-Martial then in effect stated a punitive discharge was one of the authorized punishments for violations of Article 86 (Absence without Leave for more than 30 Days). 6. The applicant states the PCF leadership should have offered him a hardship discharge. a. Under chapter 6 (Separation Because of Dependency or Hardship), AR 635-200, in effect at the time, Soldiers could be separated due to dependency or hardship reasons. The regulation defined hardship as circumstances, not involving the death or disability of a family member, where the Soldier's separation would materially affect the care and support of his/her family by alleviating undue and genuine hardship. A dependency existed when, by reason of death or disability of a family member, the Soldier's family had become principally dependent on the Soldier for care and support. (1) The Soldier had to submit a written request to his/her commander, using a DA Form 2476 (Application for Separation – Hardship or Dependency), and he/she had to provide documentary evidence, in the form of affidavits, explaining the nature of the hardship/dependency from at least two agencies or individuals who were not members of the Soldier's family. When disability was involved, the Soldier had to include a physician's certificate showing diagnosis, prognosis, and date of disability. (2) Hardship applications were only approved when all of the below-listed criteria were met: * The conditions had arisen or were aggravated to an excessive degree since the Soldier's entry on active duty * The conditions were not temporary in nature * Every reasonable effort had been made by the Soldier to alleviate the hardship without success * Discharge or release from active duty was the only readily available means for eliminating or materially alleviating the hardship (3) Soldiers pending charges, in confinement, or facing administrative elimination could not be separated under this provision until proper disposition had been made. A sentence to confinement, not including a dishonorable or bad conduct discharge, had to have been fully served before a separation authority could grant a hardship or dependency request. 7. 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. 8. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. 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: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was/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 applicant provided insufficient evidence of post-service achievements or character letters of support to show honorable conduct that might have mitigated the discharge characterization. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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: Except for the correction addressed in Administrative Note(s) below, the Board found 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): 1. Army Regulation (AR) 635-5 (Separation Documents), in effect at the time, stated a separating Soldier's DD Form 214 was to list all authorized awards and decorations. 2. AR 600-8-22 (Military Awards), currently in effect, states the National Defense Service Medal is awarded for honorable active service during any period between 1 January 1961 and 14 August 1974 (Vietnam). 3. Based on the foregoing, amend the applicant's DD Form 214, ending 21 September 1973, by adding the National Defense Service Medal. 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. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-9d (Honorable Discharge) stated 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. 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 6. Soldiers could be separated due to dependency or hardship reasons. The regulation defined hardship as circumstances, not involving the death or disability of a family member, where the Soldier's separation would materially affect the care and support of his/her family by alleviating undue and genuine hardship. A dependency existed when, by reason of death or disability of a family member, the Soldier's family had become principally dependent on the Soldier for care and support. (1) The Soldier had to submit a written request to his/her commander, using a DA Form 2476 (Application for Separation – Hardship or Dependency), and he/she had to provide documentary evidence, in the form of affidavits, explaining the nature of the hardship/dependency from at least two agencies or individuals who were not members of the Soldier's family. When the disability was involved, the Soldier had to include a physician's certificate showing diagnosis, prognosis, and date of disability. (2) Hardship applications were only approved when all of the below-listed criteria were met: * The conditions had arisen or were aggravated to an excessive degree since the Soldier's entry on active duty * The conditions were not temporary in nature * Every reasonable effort had been made by the Soldier to alleviate the hardship without success * Discharge or release from active duty was the only readily available means of eliminating or materially improving the hardship (3) Soldiers pending charges, in confinement, or facing administrative elimination could not be separated under this provision until proper disposition had been made. A sentence to confinement, not including a dishonorable or bad conduct discharge, had to have been fully served before a separation authority could grant a hardship or dependency request. d. 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, United States 1969 (Revised Edition), Table of Maximum Punishments showed a punitive discharge was an available maximum punishment for violations of Article 86 (AWOL for more than 30 days). 4. AR 600-200 (Enlisted Personnel Management System), in effect at the time, stated in paragraph 7-26b (3) (Reduction Authority and Reasons – Approved for Discharge from Service with an Undesirable Discharge) that Soldiers approved for administrative separation with an undesirable discharge under other than honorable conditions were to be reduced to private/E-1 prior to discharge. 5. 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) AR20220007251 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1