ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  
	BOARD DATE:    11 April 2019

	DOCKET NUMBER:  AR20160015902


APPLICANT REQUESTS:  The applicant requests his general under honorable conditions discharge be upgraded to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* Department of Veterans Affairs (VA) Notice of Disagreement

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’s DD Form 293 is marked by the applicant and indicates that he received a general under honorable conditions discharge.  The record shows that the applicant was discharged with a discharge under other than honorable conditions (UOTHC). 

3.  On 11 January 1971, at the age of 18 years old, the applicant enlisted in the Regular Army for a term of 2 years.

4.  On 28 September 1971, he accepted nonjudicial punishment (NJP) for failing to go at the time prescribed to his appointed place of duty.

5.  On 22 October 1971, he was convicted by special court-martial for being absent without leave (AWOL) from on or about 21 June 1971 and remained absent until 16 September 1971, AWOL for 2 months and 26 days.  He was sentenced to restriction, hard labor without confinement; to be reprimanded, and reduction to private one (PV1)/E-1.  The convening authority approved only so much of the sentence as provided for restriction, hard labor without confinement, and the reduction.

6.  On August 1972, court-martial charges were preferred against the applicant for two specifications of being AWOL from on or about:

* 19 January 1972 and remained absent until 24 May 1972, AWOL for 4 months and 6 days
* 5 June 1972 and remained absent until 26 July 1972; AWOL for 1 month and 22 days

7.  On 11 August 1972, 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.  

      a.  He acknowledged he could be ineligible for many or all Army and/or Veterans Affairs Benefits.  He signed a request for discharge for the good of the service and indicated he would not submit statements in his own behalf.

      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 lowest enlisted grade and he be issued an Undesirable discharge.  

8.  On 5 October 1972, he was discharged accordingly, his service was characterized as UOTHC.  He completed 11 months and 25 days of total active service.  His DD Form 214 (Armed Forces of the Unites States Report of Transfer or Discharge) shows
he was awarded or authorized the National Defense Service Medal and had 270 days of lost time. 

9.  His record is void of evidence showing he was awarded any personal decorations and neither the applicant nor his available records identify special circumstances.

10.  The applicant provides VA Notice of Disagreement which shows the applicant disagreed with the VA in regards to their evaluation of the applicant’s service connection disability.

11.  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. 

12.  In reaching its determination, the Board can consider the applicant's petition, and his service record in light of the published DOD guidance on equity, injustice, or clemency.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that no relief was warranted.  Based upon the short term of military service completed prior to multiple occasions of AWOL, which the applicant provided no mitigating factors for, the Board concluded that the characterization of service received at the time of discharge was appropriate.  For that reason, the Board recommending denying the applicant’s request for relief.

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.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel, it states:

	a.  A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had 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.  Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate.  

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude.

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	d.  When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade.

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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant.

ABCMR Record of Proceedings (cont)	 AR20160015902


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