IN THE CASE OF: BOARD DATE: 8 February 2023 DOCKET NUMBER: AR20220007502 APPLICANT REQUESTS: His undesirable discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) in lieu of the DD Form 149 * personal statement * State Police Criminal Record History * High School Equivalency Diploma and General Education Development (GED) Score Report * Letters of Recommendation (six) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); 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 a. He was a young, ignorant 18-year-old who blindly believed and followed what he was told, whether they were bad suggestions from his buddies, his abusive drill sergeants, or his company commander. He had no idea the impact this type of discharge would have on his life. Since his discharge he has lived an exemplary life and been a model citizen. He does not believe that the indiscretions of an 18-year-old boy, who was given false and/or misleading information, should follow him for the rest of his life. He believes that if not for the issues of the continual harassment by his drill sergeant and the injuries to his feet caused by the too big combat boots, he would not have felt the need be absent without leave (AWOL) to seek aid from a doctor in his hometown. b. He was initially denied entry because he was almost flat footed and had been told he was not eligible for the draft. After getting married, he forgot about the military until he received another letter telling him to go back and be retested. When it came time to have his feet checked he told them what had been said the first time and the person checking him said he didn't think they were that bad. He was reclassified and drafted. c. He was sent to Fort Campbell, Kentucky, to start his military career and was doing good until he let a buddy talk him into sneaking off base and going to or a couple of days. He had always wanted to go to so he let him talk him into it. He said no one would ever know and they would be back before anyone would even miss them. That was his first mistake, and he takes full responsibility for it. When it came time to head back to base, they were out of money and had no bus fare. They tried to decide what to do, and came up with the idea to go home for a few days, get some money and then go back. His buddy said they wouldn't be in anymore trouble for a few more days than they already were. That was his second mistake and again it was his fault for not thinking things through and listening to his buddy. When he got back to base, he went to his company, and they weren't too happy to see him at all. His drill sergeant decided to teach him a lesson, he had him did a lot of kitchen duties. d. A second incident was due to having a long weekend. He asked for a base pass and made reservations at the guest house for his wife and himself. She rode the bus for almost 12 hours to get there. When they went to check in, the guy at the desk told him that his reservation had been cancelled. The applicant told him that he had not cancelled his reservation. The clerk said someone with all his information called and cancelled them. He's pretty sure it was his drill sergeant as he couldn't think of anyone else that would have his information and known his plans for the weekend. The sergeant also made no secret of the fact that he despised him. Since his wife couldn't stay, he got on the bus with her and went home. He no sooner got home than he realized he was making the same mistake and he turned around and went back. g. He received nonjudicial punishment and was locked up for a while. He thought at least he would be done with the drill sergeant, but they put him right back with him and things got even worse. He took him over to supply to get some new clothes and told the supply sergeant what to give him. His pants and shirts were all at least two sizes too big for him and the boots he was issued were three sizes bigger than he wore. He would stand in front of him, in formation, and make comments about how "nice and sharp" he looked. That always got a laugh from the other guys. He didn't mind that so much. But his feet got to hurting really bad. He went on sick call, and the drill sergeant went with him. The medic made mention of his oversized boots and his drill sergeant told him he would get the applicant some different ones, but he never did. It got to the point; he could barely walk. He knew he had to do something, or he was going to be crippled. His feet and ankles had already turned black and blue. He went home and saw a doctor, who got angry when the applicant told him what was going on. He filed for a Congressional Inquiry, and the applicant took it and went back again. He told the drill sergeant that he needed to see the company commander and he stated that he had to go through the chain of command. He did this with several different people; each one trying to talk him out of it. He finally got to see the company commander after all the threats and telling him how sorry he was going to be for doing this. h. The captain was a little nicer. He said they would more than likely medically discharge the applicant but that it would take at least six months. He said the drill sergeant and some of the others were going to make it real hard on him if he went through with this and there wasn't anything he could do about it. That's when the captain offered the undesirable discharge and to drop the inquiry in exchange for helping the applicant get out quickly. He first told the captain he would not do that. That's when he told him that if he would take it, he could get it changed to an honorable after six months. He told him it would be both to his benefit and the Army's. He then gave him the paperwork. He must have talked to the other guys because they left him alone after he signed. Since leaving the Army he has done his best to live a good life as a model citizen. He just doesn't want his grandson to be ashamed of him. 3. The applicant was found acceptable for entry/induction by a physical examination on 20 April 1970. 4. On 20 April 1970, he was inducted into the Army of the United States at age 18, with a seventh-grade education. The highest grade he held was E-1 and he did not complete basic training. 5. The applicant accepted nonjudicial punishment under Article 15, of the Uniform Code of Military Justice (UCMJ) on 10 June 1970 for being AWOL from on or about 31 May 1970 until 9 June 1970. His punishment was forfeiture of $42.00 per month for two months. 6. Special Court-Martial Orders Number 88, issued by Headquarters, 2nd Training Brigade, U.S. Army Training Command, Fort Campbell, Kentucky on 29 July 1970 shows the applicant was found guilty of being AWOL from on or about 13 June 1970 until on or about 9 July 1970. His sentence was adjudged on 21 July 1970, he was sentenced to confinement for 1 month and forfeiture of $50.00 pay for two months. 7. A Commander's Inquiry, dated 16 September 1970, states the applicant joined the unit on 24 April 1970, and had previously been confined to the post-stockade for going AWOL on 16 August 1970. He had since that time had been AWOL on numerous occasions, and was currently AWOL for 30 days and was dropped from the unit rolls as deserter on 15 September 1970. 8. Court-martial charges were preferred against the applicant on 5 January 1971 for violation of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 16 August 1970 to on or about 31 December 1970. 9. The applicant consulted with legal counsel on 31 December 1970 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 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. In his request for discharge, he acknowledged his understanding that by requesting discharge, he could be discharged under other than honorable conditions (UOTHC) and furnished an Undesirable Discharge Certificate. 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 Department of Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He was advised he could submit any statements he desired in his own behalf; however, the applicant waived this right. 10. On 31 December 1970, the applicant's immediate commander recommended approval of the applicant's request for discharge in lieu of trial by court-martial, and that he furnished an undesirable discharge. 11. A Certificate of Psychiatric Evaluation, dated 15 January 1971, shows no psychiatric diagnosis was applicable and no significant history of emotional or behavioral difficulties. The applicant stated that he does not like people telling him what to do. He basically does what he wants to do. Because of this, he has gone AWOL, since he felt that if he does this long enough he will be discharged. The findings and conclusions were that he was a generally immature individual, his motivation for completion of his military service was essentially nil and continued disciplinary difficulties were quite likely. This problem, however, did not constitute a psychiatric problem and he was psychiatrically cleared. 12. The separation authority approved the applicant's request for discharge on 17 February 1971 under the provisions of Army Regulation 635-200, paragraph 10-5, for the good of the service. He directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 13. The applicant was discharged on 1 March 1971. His DD Form 214 (Armed Forces of the United States, Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-200, paragraph 10-6, and his service was characterized as UOTHC. He was credited with 3 months, and 17 days of net active service with five periods of lost time totaling 203 days. He was not issued a military occupational specialty. 14. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 15. The applicant provides copies of his State Police Criminal Record History, showing no arrests, and a High School Equivalency Diploma and GED Score Report showing he successfully completed GED requirements on 17 January 1989. 16. In the six Letters of Recommendation provided, the applicant is described as: a. A friend and employee for the for over 20 years. He left his employment for retirement and is dearly missed. They found his services more than satisfactory and his ability to complete any project that was presented was commendable. He not only worked at keeping the City's fleet in excellent working condition but was available to help during any disaster that the city might endure or special projects they created. b. The former Mayor states he has known the applicant for over 50 years. The applicant was considered a conscientious and dedicated hard worker and a valued member of the workforce of the for a number of years. His positive attitude was reflected in his job performance which earned him enviable reputation as an excellent city employee. c. The current Mayor states the applicant was a well-respected, dedicated, and dependable employee. Whatever the task, he completed it in a timely and professional manner. There was never a doubt when he did a job it was done correctly. He took pride in his work. d. The hief of Police stated he has known the applicant for over 20 years. He is an extremely competent person and known to be honest and dependable. During his time as a mechanic for the he was very professional and knowledgeable, a law abiding citizen that he trusts would do well in any capacity he chooses. e. The retired Chief of Police states he has known the applicant since 1977. During this period, he demonstrated that he is a very honest and reliable person with outstanding moral character, and a law-abiding citizen that is respected in the community. f. The retired Fire Department Chief states the applicant was responsible for the upkeep and maintenance for all city vehicles and equipment, plus, he was an electrician, plumber, and carpenter. He enacted a maintenance schedule program for the Fire Department, Street Department, and all city vehicles. You could walk in at any time and ask him about a vehicle, and he was able to tell you not only about the vehicle but when the last maintenance and what was repaired during that maintenance. He is a very responsible professional as well as a very truthful man. 17. 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, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. 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 noteworthy, the applicant’s character letters of support that attest to him being a pillar of society within his community as truthful and responsible individual. However, the Board determined there was insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination During deliberation, the Board determined the applicant’s service record exhibits numerous instances of misconduct during his enlistment period for 3 months, and 17 days of net service for this period 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. 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. 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 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 sets forth the basic authority for the separation of enlisted personnel. The version in effect at that time it 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 of that regulation provided, in pertinent part, 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, an under other than honorable conditions discharge was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an Undesirable Discharge Certificate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and BCM/NRs on 25 July 2018, 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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.) AR20220007502 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1