IN THE CASE OF: BOARD DATE: 6 September 2023 DOCKET NUMBER: AR20230004751 APPLICANT REQUESTS: * an upgrade of the named servicemember’s characterization of service from under conditions other than honorable discharge to general or honorable * a video/telephonic appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 19 February 2023 * Self-authored statement, 19 February 2023 * Letters of support (x3) * DD Form 214 (Report of Separation from Active Duty), 28 February 1975 * Power of Attorney, 20 March 2023 * State of Ohio Certificate of Birth, 14 April 1961 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 claimant states that she is writing on her brother’s behalf and apologizes for any wrongdoing on his part during his time in service. He has expressed his embarrassment, shame, and humiliation over the past 17 years. His discharge has interfered with his quality of life, and he would like to ask for forgiveness so he can move on and have a better life without the embarrassment of his characterization of service. She also mentions that her brother was the first person in the family to send all of his girls to college. 3. The applicant provides three letters of support and a DD Form 214, effective, 28 February 1975. a. In a letter provided by , it mentions that she has known the servicemember for almost 20 years and has always found him to be extraordinarily responsible, compassionate, and capable with an outstanding work ethic and dedication to helping others. She goes on to state that his dedication to his family and support for their welfare, education, and wellbeing has produced amazing adults who are now employed in law enforcement, healthcare, and technology career fields. His work in the church, passionate belief in God, and his love and care has extended beyond his family and to others in the community. Additionally, he volunteers with Meals on Wheels and other outreach organizations. He is said to be a model for the best qualities the military can build in an individual and has lived his life to those standards and enriched many lives throughout his life. b. In a letter of support from , she states that the servicemember enlisted in the Army as a way to help his mother financially and support the seven children his father left behind once he passed away. She says he has always put family first, a value that their father instilled in his sons before his death. When he became a father of four daughters, he only wanted the best for them, and he gained employment at the University of, so his children were able to attend college free of charge. Each of his daughters has successfully graduated with at least a bachelor’s degree. Additionally, he became a minister at his church, where he has provided spiritual support to not only its members, but those at local hospitals and to incarcerated prisoners as well. c. In a letter provided by , she states how the servicemember played an intricate part in her and her sisters lives. She recalls that when their mother had to work, her father was the one that prepared them for the day. He ensured their educational success by taking a position at the University of, so they did not have to worry about finances. Even into adulthood, he has been active in his children’s lives and has walked two of them down the aisle at their weddings and officiated another. Years ago, he became a minister at a local church and committed to the transportation of church members on a weekly basis for service. She says he has a heart of service and would make himself available for anyone who needs him and would step in any way he could. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 19 June 1972. b. He received nonjudicial punishment under Article 15 on 27 November 1972 for being absent without leave (AWOL) from 17 November 1972 to 20 November 1972. His punishment included: forfeiture of $25 per month for one month, suspended until 9 January 1973, extra duty for a period of 7 days, and restriction for a period of 10 days. c. His record is void of a DD Form 458 (Charge Sheet), but Special Court-Martial Order Number 28 shows on 30 March 1973, court-martial charges were arraigned and tried for the applicant for one specification of wrongful appropriation of a General Electric 8 track tape player of a value less than $100, but more than $50, on 3 February 1973. His adjudged sentence included: confined at hard labor for 3 months; to forfeit $150 pay per month for 3 months; and to be reduced to the grade of E-1. However, the portion of the sentence adjudging confinement at hard labor was suspended for six months. d. On 30 August 1973, the suspended portion of the sentence was vacated and ordered into execution. He was credited with service of confinement from 20 November to 26 November 1973 and directed to execute the unexecuted portion of the sentence. e. Two DA Forms 4187 (Personnel Action) show his duty status change from Present for Duty to AWOL on 13 December 1973, and from AWOL to Present for Duty on 26 December 1973. f. Unit Orders Number 8, Headquarters, 801st Maintenance Battalion, dated 24 February 1975 reduced the applicant to Private (E-1), in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service. g. His record is void of the facts and circumstances concerning his discharge and a separation packet, including election of rights and chain of command recommendations. h. On 28 February 1975, he was discharged from active duty with an under other than honorable conditions characterization of service under the provisions of chapter 10, AR 635-200. His DD Form 214 shows he completed 2 years, 1 month, and 10 days of active service with 215 days lost time. 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 6. By regulation (AR 635-200), an individual who has 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. 7. By regulation (AR 15-185), an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 8. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was 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 determined the applicant’s post-service achievements and character reference letters have mitigated the instance of misconduct resulting in the discharge characterization. The Board agreed there was sufficient evidence to support the applicant’s contentions. Therefore, the Board found that the applicant’s case warrants clemency with an upgrade of his discharge to under honorable (general) conditions. 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 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as General Under Honorable Conditions. 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, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of this regulation states an individual who has 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. An Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. c. An applicant with a proper interest may request correction of another person’s military records when that person is incapable of acting on his or her own behalf, missing, or deceased. Depending on the circumstances, a child, spouse, parent, or other close relative, heir, or legal representative (such as a guardian or executor) of the soldier or former soldier may be able to demonstrate a proper interest. Applicants must send proof of proper interest with the application when requesting correction of another person’s military records. 4. 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 based on 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) AR20230004751 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1