IN THE CASE OF: BOARD DATE: 28 June 2023 DOCKET NUMBER: AR20230000036 APPLICANT REQUESTS: an upgrade of his characterization of service from under other than honorable conditions to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), 17 August 2022 * funeral program, 29 March 1974 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 his uncle passed away in April 1974. He had over 30 days of leave and he asked his leadership if he could use it to attend his uncle’s funeral in, but his leadership told him he could not go to his funeral. His uncle was more like a father to him, and they were extremely close. He feels his trouble in the Army never would have happened if he was granted leave to attend his uncle’s funeral. 3. The applicant enlisted in the regular Army on 27 September 1972. 4. On 22 March 1974, the applicant’s immediate commander reported the applicant absent from his unit, without authority; the applicant was dropped from the rolls. 5. The applicant provided a copy of the funeral program for his uncle. The program shows his uncle died on 26 March 1974 and his funeral service an interment were on 29 March 1974. 6. On 17 April 1974, the applicant surrendered to military authorities and was returned to military control. 7. Court-martial charges were preferred against the applicant on 29 April 1977. His DD Form 458 (Charge Sheet) shows he was charged with 4 specifications of Article 86 (Absent without leave): * Specification 1: the applicant did, on or about 2 January 1974, fail to go at the time prescribed to his appointed place of duty, Bay Guard duty. * Specification 2: the applicant did, on or about 25 January 1974, without authority, absent himself from his unit, and did remain so absent until on or about 29 January 1974. * Specification 3: the applicant did, on or about 28 February 1974, without authority, absent himself from his unit, and did remain so absent until on or about 5 March 1974. * Specification 4: the applicant did, on or about 22 March 1974, without authority, absent himself from his unit, and did remain so absent until on or about 19 April 1974. 8. On 8 May 1974, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10. He understood he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorizes the imposition of a bad conduct discharge or dishonorable discharge. He acknowledged he made the request of his own free will and was not coerced by any person. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veteran’s Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State law and encounter substantial prejudice in civilian life because of an under other than honorable discharge. He elected to not submit statements on his own behalf. 9. On 20 May 1974, the applicant underwent a medical examination for the purpose of separation. The doctor did not note any medical issues and found the applicant qualified for separation. 10. On 20 May 1974, the applicant underwent a mental status evaluation for the purpose of separation. The doctor did not note any medical issues and found the applicant had the mental capacity to understand and participate in separation proceedings. 11. On 22 May 1974, the applicant's immediate commander submitted a formal recommendation for discharge under the provisions of AR 635-200, chapter 10, for the good of the service, with an undesirable discharge. His reason for the proposed actions: “The applicant has a past record of numerous AWOLs. He is unresponsive to disciplinary action taken against him by his superiors. He is apathetic and has no desire to improve his efficiency or conduct. He is a liability to the U.S. Army and should be discharged under the provisions of AR 635-200, chapter 10.” 12. On 29 May 1974, the applicant's intermediate commander concurred with the recommendation for request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service, with an undesirable discharge. 13. On 20 June 1974, the separation authority approved the recommended discharge under the provisions of AR 635-200, chapter 10, for the good of the service, with an undesirable discharge. 14. The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 27 June 1974, under the provisions of AR 635-200, paragraph 10-1, in the rank/grade of Private/E-1. His service was characterized as under other than honorable conditions, and he received a separation program designator of 246 and a reentry code of 4. He completed 1 year, 7 months and 24 days of net active service with 37 days lost time. Additionally, his DD Form 214 list the following decorations and awards: * National Defense Service Medal * Parachute Badge 15. He provides a copy of a funeral program for Mr. , who died on and his funeral was held on 29 March 1974 in, . 16. There is no indication the applicant applied to the Army Discharge Review Board for review of his discharge within that board’s 15-year statute of limitations. 17. The pertinent Army regulation in effect at the time provided discharges under the provision of Army Regulation 635-200, chapter 10, where voluntary requests from the Soldier to be discharged in lieu of a trial by court-martial. 18. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. ? BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief 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 and the applicant provided no evidence of post-service achievements or letters of support to weigh a clemency determination. The Board determined the applicant’s service record exhibits numerous instances of misconduct during his enlistment period for 1 year, 7 months and 24 days of net service for this period Based upon a preponderance of evidence, the Board determined that 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 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provided that a member who committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The discharge request may be submitted after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court- martial to which the charges may be referred. The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court-martial convening authority. Commanders will ensure that a member is not coerced into submitting a request for discharge for the good of the service. The member will be given a reasonable time to consult with consulting counsel and to consider the wisdom of submitting such a request for discharge. After receiving counseling, the member may elect to submit a request for discharge for the good of the service. The member will sign a written request, certifying that they were counseled, understood their rights, may receive a discharge under other than honorable conditions, and understood the adverse nature of such a discharge and the possible consequences. A discharge under other than honorable conditions was normally appropriate for a member who is discharged for the good of the service. However, the discharge authority may direct an honorable or general discharge if such are merited by the member's overall record during the current enlistment. b. An honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. c. A general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. A discharge under other than honorable condition is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct and for the good of the service. 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 regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. 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) AR20230000036 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1