ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 March 2019 DOCKET NUMBER: AR20160015621 APPLICANT REQUESTS: The Applicant requests his general under other than honorable conditions discharge be upgraded to an honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) 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. The applicant states he was home for his mother's cancer treatment. The paperwork he received from the doctor was misplaced by Army Administration and he was processed for discharge. He was two months from meeting his service obligation when released. He was young then; but now retired and a good citizen. 3. On 05 January 1977, at the age of 17, the applicant enlisted in the Regular Army for a period of 2 years and 7 months. His records show he had three periods of AWOL from 06 June 1979 through 07 September 1979. His record is void of evidence showing he was awarded any personal decorations. 4. On 23 February 1979, the applicant received UCMJ for failure to obey a lawful order. 5. On 17 September 1979 the applicant was charged with AWOL for the period of 08 August 1979 until 08 September 1979. 6. On 07 August 1979, he completed a separation physical indicating he was qualified for separation. 7. On 18 September 1979 The applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, chapter 10. He signed a request for discharge for the Good of the Service and indicated he would submit a statement on his own behalf. a. In his personal statement he states he was 20 years old with a general education degree (GED). He was bored and so he joined the Army. His military occupational specialty (MOS) was 75B (Personnel Administrative Specialist). He wants to be discharged because he doesn't belong in the Army and does not agree with military procedures. b. The applicant's chain of command recommended approval of his request and the appropriate separation authority approved the applicant's request directing the applicant be reduced to the grade private (PV1/E1) and he be issued an Undesirable discharge. 8. On 19 November 1979 he was discharged accordingly. He served 2 years, 8 months and 3 days of net active service. His DD Form 214 shows three period of lost time (XX days) and void of authorized awards. 9. On 18 December 1979, the applicant petitioned the Army Discharge Review Board (ADRB) to upgrade his under other than honorable conditions discharge to an honorable discharge. He stated he was young and immature and his ability to serve was impaired because of family issues. The Board stated after careful consideration the Board could not upgrade his character of service to honorable and his request for change as denied. 10. The applicant states he was home with mother who was receiving medical treatment and the Army misplaced the paperwork from the doctor and he was processed for discharge. His records shows charges were preferred against him for being AWOL and he willingly and voluntary requested a chapter 10 separation in-lieu of trial by court martial, stating, in pertinent part, he wanted to be discharged because he did not agree with military processes. 11. Army Regulation 635-200 a chapter 10 is a voluntary request by a member in lieu of a 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. 12. 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: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. The Board found that based upon the short term of service prior to misconduct beginning, as well as the multiple occasions of misconduct, the Board concluded that the characterization of service received at the time of discharged was 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 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, 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. 2. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. It provided: a. A Chapter 10 is applicable to a member who has committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred and must have included the individual’s admission of guilt. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. 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. 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. ABCMR Record of Proceedings (cont) AR20160015621 4 1