ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 May 2019 DOCKET NUMBER: AR20160016284 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * DD Form 4 (Enlistment Record) * DA Form 20 (Enlisted Qualification Record) * Enlistment and Separation Physicals * Article 15 * Special Court-Martial Orders Number 611 * Charge Sheet and separation packet 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 does not believe the actions that happened justify a discharge under other than honorable. 3. He provides: * his enlistment record and personnel qualification record * enlistment physical showing he was eligible for enlistment * separation physical showing he was fully qualified for separation * special court-martial order showing conviction for being absent without leave (AWOL) and Article 15 for AWOL * Charge sheet and voluntary separation packet under chapter 10 * 4. Review of the applicant's service records shows: a. 1 July 1969 - underwent an enlistment physical; he was found qualified for enlistment. b. 12 September 1969 - he enlisted in the Regular Army c. 21 June 1971 - he was convicted by a special court-martial of three specifications of AWOL (13 July to 5 November 1970, 25 November 1970 to 26 February 1971, and 29 March to 20 May 1971). The court sentenced him to confinement at hard labor for 4 months and forfeiture of pay for 4 months. The convening authority approved it on 25 June 1971. d. 18 October 1971 - he accepted nonjudicial punishment under Article 15 for being AWOL from 11 to 15 October 1971. His punishment consisted of forfeiture of pay and restriction. e. 29 February 1972 - underwent a physical. He indicated he was in good health. f. 5 June 1972 - court-martial charges were preferred against him for two specifications of AWOL from 31 October 1971 to 17 February 1972 and 3 March 1972 to 25 May 1972. g. 7 June 1972 - he consulted with legal counsel and subsequently requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request, he acknowledged: * the basis of this trial by court-martial which could lead to a bad conduct or a dishonorable discharge, and maximum punishment * he had not been subjected to any coercion * he understood if the request for discharge is accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate * he understood that, as a result of the issuance of such a discharge, he could be deprived of many of all Army benefits * he could be ineligible for many or all benefits administered by the Veterans' Administration * he could be deprived of his rights and benefits as a veteran under both federal and state law * he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge * h. The chain of command recommended approval of his discharge with the issuance of an under other tan honorable conditions discharge. The immediate commander stated: * during the period from his enlistment to the present, the applicant had been assigned to various duty stations * his conduct and efficiency ratings in each assignment had been unsatisfactory * his conduct has rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge * based on his previous record, punishment can be expected to have minimal rehabilitative effect and the total lack of any ultimate benefit to the army or society accomplished by punishment would seem to justify the granting of this request * there did not seem to be any reasonable ground to believe that the applicant is or was at the time of his misconduct mentally defective, deranged, or abnormal i. 9 June 1972 - consistent with the chain of command recommendations, the separation authority approved the applicant’s request for discharge. He would be reduced to the lowest enlisted grade and issued an Under Other Than Honorable Conditions Discharge Certificate. j. 19 June 1972 - he was discharged from active duty under the provision of AR 635-200 , chapter 10. He completed 1 year, 2 months, and 10 days of net active service and he had 381 days of lost time. His service was characterized as under other than honorable conditions. He was awarded or authorized: * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) 5. By regulation, a member who has committed an offense 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. 6. 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. 1. BOARD DISCUSSION: After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon a pattern of misconduct and a lack of character evidence to show that the applicant has learned and grown from the events leading to discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 5/21/2019 X CHAIRPERSON Signed by: 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 three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. When a Soldier is discharged before ETS for a reason for which an honorable discharge is discretionary, the following considerations apply. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). 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 of that regulation provides that a Soldier 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. The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. 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. This guidance does not mandate 1. 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.