IN THE CASE OF: BOARD DATE: 24 January 2024 DOCKET NUMBER: AR20230006626 APPLICANT REQUESTS: in effect, upgrade of his undesirable discharge to general, under honorable conditions or upgrade to honorable, and an appearance hearing before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record), 20 March 2023. 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, in effect: a. He was only absent once which would have been 67 days lost under Title 10, U.S.C, from 23 May 1975 to 28 July 1975. It was because he was arrested in New York. He was picked up by military police and returned to Fort Dix. He was told he would receive a general discharge. He did not know of his under other than honorable conditions discharge until 2017. He did not receive any paperwork. b. He is not in the best of health anymore, he is 66 years of age, and he is on social security. He hopes the Board will look favorably on his request and help him out in this matter. 3. A review of the applicant's service records show: a. On 31 January 1975, he enlisted in the Regular Army for 3 years at age 18. b. He was assigned to Special Training Company (STC), Basic Combat Training (BCT), Fort Dix. He was not promoted during his active service. c. His records contain DA Forms 4187 (Personnel Action) showing his status was changed: * on 23 May 1975 from present for duty (PDY) to absent without leave (AWOL) * on 23 June 1975 from AWOL to dropped from the rolls (DFR) d. A DD Form 629 (Receipt for Prisoner or Detained Person) shows he was apprehended by civil authorities on 8 July 1975 for burglary while in an AWOL status, and confined at the (County) Jail. On 22 July 1975, he was sentenced to time served and was transferred to control of military authorities on 29 July 1975. His status changed from DFR to PDY. e. On 5 August 1975, court-martial charges were preferred against him. His DD Form 458 (Charge Sheet) shows he was charged with one specification of AWOL from STC, 3rd BCT Brigade, Fort Dix, from 23 May 1975 to 29 July 1975. f. After consulting with legal counsel on 5 August 1975, he voluntarily requested discharge for the good of the service, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). In doing so, he acknowledged that the charges preferred against him under the UCMJ, authorized the imposition of a bad conduct discharge or dishonorable discharge. He further acknowledged: * he had not been subjected to coercion with respect to his request for discharge * he had been advised of the implications that were attached to it * by submitting the request, he was acknowledging he was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized imposition of a bad conduct or dishonorable discharge * he could be discharged under other than honorable conditions, furnished an undesirable certificate, and he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA) * he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge * he was advised he could submit any statements he desired in his own behalf, and elected not to do so h. His unit commander and intermediate commander recommended approval of his request for discharge for the good of the service and issuance of an Undesirable Discharge Certificate, on 8 August 1975 and 25 August 1975 respectively. i. On 27 August 1975, the separation authority approved his request for discharge, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. He directed issuance of an Undesirable Discharge Certificate. j. On 15 September 1975, he was discharged. His DD Form 214 Report of Separation from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, chapter 10 with separation program designator of KFS (conduct triable by court-martial), for the good of the service, and reentry eligibility code 4. His service was characterized as under other than honorable conditions. He completed 5 months and 9 days of net active service this period and he had 67 days of lost time. His DD Form 214 further shows he had 41 days of excess leave and he was awarded or authorized the following awards: * National Defense Service Medal * Expert Marksmanship Qualification Badge with Grenade Bar * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). 4. On 24 August 1981 the Army Discharge Review Board reviewed his case and determined his discharge was both proper and equitable and voted to deny relief. 5. 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 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 determined there is insufficient evidence of in-service mitigating factors to overcome the misconduct. The Board noted, the applicant provided insufficient evidence of post-service achievements or character letters of support that attest to his honorable conduct for the Board to weigh for clemency determination. 2. The Board determined the applicant was AWOL and apprehended by civilian authorities for burglary. Evidence shows the applicant did not receive a military occupational specialty and only completed 5 months and 9 days of active-duty service. The Board agreed 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 to a honorable discharge. Based on the preponderance of evidence, the Board found amending the previous Board decision is without merit and denied relief. 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: 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 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. 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 (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. 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. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. 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. c. Chapter 10 provided that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service for conduct triable by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230006626 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1