IN THE CASE OF: BOARD DATE: 2 August 2023 DOCKET NUMBER: AR20230001740 APPLICANT REQUESTS: * Reconsideration of his previous request to upgrade his undesirable discharge under other than honorable conditions to a general discharge under honorable conditions * Permission to appear personally before the Board, via video/telephone APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Associated documents from Correction of Military Records (ABCMR) Docket Number AR20170013921, to include the applicant's evidence and letters of support and an extract from his service record FACTS: 1. Incorporated herein by reference are military records, as were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20170013921, dated 9 September 2019. 2. The applicant states, in effect, he has waited many years to make this request. Since his Army separation, he feels he has contributed in a big way to society; he now would like his service recognized. The applicant provides additional information in a self- authored statement: a. The applicant states he joined the Army in 1973 while living in (). He subsequently moved to () and worked for a company cutting asparagus, then drove a tractor for an apple orchard, and ultimately learned to drive a diesel truck. His parents taught him the value of hard work and a strong work ethic. b. When the applicant found he could not advance in, he made the conscious decision to relocate to and started hauling produce. He went out on a limb and purchased his own diesel truck and several companies took him on as an independent trucker. c. In 1987, the applicant married his now-former spouse; when she told him she wanted a divorce after 30-plus years of marriage, one of her reasons was that he worked too much. While they were married, he provided 100 percent of the financial support for his wife and her four children from previous marriages; by contrast, those former husbands offered no monetary assistance, and, to this day, the applicant has no regrets about how he took care of his family. d. Once he became an independent trucker, he came to realize how little he understood about the ramifications of self-employment; business was up and down, and the bank eventually repossessed his first truck. Nonetheless, he was determined to get ahead, so he worked hard and saved enough money to purchase a second truck. By 1995, he had amassed ten trucks and, in 2005, he incorporated his own business. e. In 2015, he sold all but two of his diesel trucks; he did this to help his two grown sons find their way in life and further their education. He also bought three homes and gave them to his sons once they married, thus fulfilling his fatherly obligations. Currently, he resides in the first home he purchased, and he continues to work as the founder of his business. f. In support of his request, the applicant provides evidence that the Board previously considered as part of his original ABCMR application. 3. A review of the applicant's service record reveals the following: a. On 11 July 1973, the applicant enlisted into the Regular Army for 3 years; he was 18 years old. Upon completion of initial entry training and the award of military occupational specialty 36K (Tactical Wire Operations Specialist), orders assigned him to an air defense artillery battalion at Fort Lewis, Washington; he arrived on 6 December 1973. At some point prior to April 1974, the applicant's leadership promoted him to private (PV2)/E-2. b. On 1 April 1974, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for failing to report for Arms Room Guard; punishment included a suspended reduction to private (PV1)/E-1. c. On 15 December 1974, the applicant's unit reported him as absent without leave (AWOL) and dropped him from unit rolls, on 14 January 1974. d. On 15 August 1975, the applicant surrendered himself to military authority at,; orders subsequently transferred him to the U.S. Army Personnel Control Facility (PCF) at Fort Lewis, and he arrived, on 19 August 1975. e. The applicant's separation packet is unavailable for review; however, the applicant's service record includes his DD Form 214 (Report of Separation from Active Duty), which shows that, on 12 September 1975, the Army discharged the applicant under other than honorable conditions. The DD Form 214 additionally reflects the following: * Item 6a and 6b (Grade, Rate, or Rank) and (Pay Grade) – PV1/E-1 * Item 7 (Date of Rank) – 9 September 1975 * Item 9c (Authority and Reason) – Chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel); SPD (separation program designator) "KFS" * Item 18a (Net Active Service This Period) – 1 years, 5 months, and 9 days * Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) – National Defense Service and a marksmanship qualification badge * Item 27 (Remarks) – Reflects the applicant's 243 days of lost time, from 15 December 1974 through 14 August 1975 f. On 3 July 2017, the applicant asked the ABCMR to upgrade his character of service to under honorable conditions; with his application, he provided letters of support from family members. (1) In a self-authored statement, the applicant provided insights into his childhood and his experiences while on active duty. (a) The applicant described one incident where, upon finding his car penned in by an illegally parked vehicle, he waited about 25 to 30 minutes, and when the owner did not show up, he tried to maneuver his car out of the parking spot; in so doing, however, he accidently struck the other car. It turned out that other car belonged to his master sergeant (MSG); the MSG was very upset about the damage and, from that point forward, the applicant could no longer do anything right in the MSG's eyes. (b) About two weeks later, the applicant tried to find the MSG for permission to visit his parents; when he was unable to locate the MSG, he sought out his lieutenant (LT), and the LT gave him permission to leave. On his return, the MSG told him to report to the commander. As soon as he entered the commander's office, the commander read the applicant his rights; when the applicant asked what was happening, the MSG said the applicant had been AWOL. After the applicant explained that the LT had given him permission go, the commander glared at the MSG, told the applicant to leave, and called in the LT; a heated discussion ensued. The next morning, the LT told the applicant that he (the LT) was in "hot water" with the commander; the applicant surmised this meant that he too was in "hot water," not just with his MSG, but also the LT, and the commander. (c) Approximately a week after this, he left the base once more to visit his parents and friends. On Sunday, when he was supposed to return, his car broke down; although he found an open gas station, he was unable to find a mechanic to fix the car. He called his MSG and offered the gas station's phone number for the MSG to confirm his story, but the MSG replied he would not call the gas station, and that if the applicant did not return on time, he should just report to the military police. The applicant wrote, "I was convinced my MSG was going to do his best to make me pay for unwittingly hitting his vehicle by having me militarily incarcerated, and I concede that I was troubled at what might happen to me. Fearing the worst from my superiors, I reluctantly and with a heavy heart decided not to return to the base." (d) Eight months later, the applicant decided to turn himself in. A military attorney gave him two alternatives: the "Retraining Brigade" or an undesirable discharge; with the first option, the applicant would have a felony conviction on his record, and with the second, he would be able to ask the Department of Veterans Affairs for an upgrade after 3 or 4 years. Not wanting a felony conviction, the applicant opted for the adverse discharge. (e) Immediately following his discharge, the applicant found himself drinking alcohol and fighting anyone who questioned his manhood; he felt like a failure. However, he began to turn things around and, by 26 years of age, he had saved enough money to buy a truck and become self-employed. He subsequently started his own business; his son is now the company president, and the applicant is the vice president. The applicant acknowledged his actions were wrong, but he asked the Board to change his character of service because he felt he had paid his dues. (2) On 10 July 2019, after considering the applicant's contentions and letters of support, the Board voted to deny relief. The Board stated, based on the relatively short term of honorable service prior to a lengthy AWOL, along with the fact that the applicant's letters of support were all from family members (interested parties), and he failed to provide evidence of his post-service achievements, the Board agreed that the applicant's discharge characterization was warranted. 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. a. The absence of the applicant's separation packet means we are unable to determine the complete circumstances that led to his discharge; however, given the availability of the applicant’s record copy DD Form 214, which lists the applicant’s regulatory separation authority, the Board presumes the applicant's leadership completed his separation properly. (1) AR 15-185 (ABCMR) states the ABCMR decides cases on the evidence of record; it is not an investigative body. Additionally, the ABCMR begins its consideration of each case with the presumption of administrative regularity (i.e., the documents in an applicant’s service records are accepted as true and accurate, barring compelling evidence to the contrary). The applicant bears the burden of proving the existence of an error or injustice by presenting a preponderance of evidence, meaning there is a greater than a 50 percent chance that what an applicant’s claims is true. (2) This presumption notwithstanding, the version of the military personnel records regulation in effect at the time, AR 640-10 (Individual Military Personnel Records), required case files for approved separations under other than honorable conditions to be maintained in the affected Soldiers' military personnel file. b. During the applicant's era of service, Soldiers charged with UCMJ violations, for which a punitive discharge was among the maximum punishments, could request separation under chapter 10, AR 635-200; such requests were voluntary and offered in- lieu of trial by court-martial. c. Assuming the basis for the applicant's separation request was his 243-day AWOL, the Manual for Courts-Martial then in effect stated the punishment for violation of UCMJ Article 86 (AWOL for 30 or more days) included a punitive discharge. 6. 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. 7. 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 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 Board noted the applicant’s post service achievements, and his character letters of support were noteworthy. However, the Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge is warranted. The Board agreed, amendment of the previous Board decision is without merit and denied relief. 2. 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: 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 to amend the decision of the ABCMR set forth in Docket Number AR20170013921, dated 9 September 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 (AR) 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. 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. b. 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. 2. 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 UCMJ Article 86 (AWOL for more than 30 days). 3. AR 600-200 (Enlisted Personnel Management System), in effect at the time, stated in paragraph 7-64c (Reasons for Reduction – 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. 4. 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. 5. AR 15-185 (ABCMR), states: a. The ABCMR decides cases on the evidence of record; it is not an investigative body. Additionally, the ABCMR begins its consideration of each case with the presumption of administrative regularity (i.e., the documents in an applicant’s service records are accepted as true and accurate, barring compelling evidence to the contrary). The applicant bears the burden of proving the existence of an error or injustice by presenting a preponderance of evidence, meaning there is a greater than a 50 percent chance that what an applicant’s claims is true. b. 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. 6. AR 640-10, in effect at the time, required case files for approved separations under other than honorable conditions to be maintained in the affected Soldiers' military personnel file. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230001740 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1