ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 February 2019 DOCKET NUMBER: AR20160015041 APPLICANT REQUESTS: The applicant requests the reconsideration of Army Board for Correction of Military Records (ABCMR) Docket Number AR AC94-09619 dated 26 October 1994 to upgrade his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record * DD Form 214 (Report of Separation from Active Duty) * Self-Authored Statement FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR AC94-09619 dated 26 October 1994. 3. The applicant states, he was discharged more than 40 years ago. He dropped out of high school at age 17 without much education and understanding of life. He regrets the mistakes he made when he was young. Now he is older, age 60, and has suffered many years as a result of his mistake. His son has joined the military. He asks that the Board, please consider his request. 4. On 29 April 1975, the applicant enlisted in the Regular Army, at the age of 18, for 3 years. His record is void a separation packet; however, his record contains the following documents: a. A Personnel Qualification Record that shows from: * 20 January to 9 March 1976 he was absent without leave (AWOL) (50 days) * 10 March to 20 May 1976 he was in military confinement (71 days) b. A Memorandum, dated 10 June 1976, that shows his reason for separation was “Conduct triable by court-martial” and the authority for separation was chapter 10, Army Regulation (AR) 635-200. 5. On 11 June 1976, he was discharged from active duty under the provision of Army Regulation 635-200, chapter 10, under other than honorable conditions. His DD Form 214 shows: * Total Active Service: 11 months and 23 days * Primary Military Occupational Specialty: Trainee * Lost Time: 65 days 6. The applicant states he was young, uneducated and has paid for his mistake. His record shows he enlisted at the age of 18 and went AWOL for 50 days and was served his time in military confinement. Although his record is void of a complete separation packet, the available evidence provides he voluntarily requested a chapter 10 in lieu of a trial by court-martial. 7. Army Regulation 635-200, states a discharge under the provisions of chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 8. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board considered the applicant’s request with all supporting documents, evidence in the service record and applicable policies and guidance. The board finds the applicant's discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. The Board finds his separation was both proper and equitable. 2. The applicant’s record shows he enlisted at the age of 18 and went AWOL for 50 days and served 71 days in military confinement during his total active service of 11 months and 23 days. There was insufficient evidence of honorable service during the short time he served. The Board considered the applicant’s statement of how he was discharged over 40 years ago and dropped out of high school without much education and understanding of life, and regrets the mistakes he made when he was young. However, the greater weight of evidence, even when applying liberal consideration standards, does not indicate that the applicant’s duty performance and behavior generally met the standards of acceptable conduct and duty performance as described in AR 635-200. Consequently, the applicant has not demonstrated by a preponderance of evidence that an honorable discharge is warranted. 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 to amend decision of the ABCMR set forth in Docket Number AC94-09619, dated 26 October 1994. ___________X________________ Chairperson 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. AR 635-200 sets forth the basic authority for the separation of enlisted personnel, it states: 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. A chapter 10 is for a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 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 (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. b. 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. ABCMR Record of Proceedings (cont) AR20160015041 3 1