ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF: 
	BOARD DATE:    17 April 2019

	DOCKET NUMBER:  AR20160016763


APPLICANT REQUESTS:  

* upgrade of his under other than honorable conditions discharge
* correct his DD Form 214 (Report of Separation from Active Duty) to show he completed GED (General Education Development) classes

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* Online application for Correction of Military Record)
* DD Form 214 (Report of Separation from Active Duty)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records:  Claims Incident Thereto).  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 he believes, after all this time, the Board can upgrade his drug-related discharge from Fort Hood, TX.  

	a.  At the time, they did not offer him rehabilitation, only an undesirable discharge, and he never had the chance to remain in the Army.  He overdosed on opiates while at Fort Hood; he had been using opiates since advanced individual training (AIT) at Fort Carson, CO.  He makes no excuses, except to note he is currently in a Department of Veterans Affairs (VA) facility for drug addiction; he has been in treatment centers since 1975.  

	b.  He contends his education (re-training in new fields) and access to housing assistance depends on funding that is not available because of his character of service.  He reenlisted in 1980 and they gave him an honorable discharge; this made him wonder if an upgrade was possible for his previous discharge.  He is currently drug-free and has remained out of trouble for 36 years; his adverse character of service contributed to him having had many low-paying jobs that did not work out.  His current health is very poor; he has congestive heart failure and VA implanted a defibrillator.  He has had lower back operations due to degenerative disc disease and has tinnitus.  In addition, his teeth are gone.  He is very sorry for "messing up (his) possible U.S. Army career."  Nothing made him prouder than graduating from basic combat training and AIT.  

	c.  He took GED classes at Fort Ord, CA and completed them at Fort Hood.  Although they gave him a certificate, he no longer has any documentation to prove this.

3.  The applicant's service records show:

	a.  He enlisted in the Regular Army on 6 April 1973.  

	b.  While stationed at Fort Carson, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 13 October until 1 November 1973.

	c.  On 16 August 1974, consistent with his pleas, a special court-martial convicted him for being AWOL on three occasions:  26 until 28 November 1973; 3 December 1973 until 3 January 1974; and 17 until 20 January 1974.  A military judge sentenced him to 30 days confinement and reduction from private/E-2 to private/E-1.  On 23 August 1974, the special court-martial convening authority approved the sentence and ordered its execution; however, the convening authority suspended for 6 months that portion of the sentence that adjudged confinement in excess of 14 days.  

	d.  Following his release from confinement, the applicant was reassigned to Fort Hood and arrived on 10 September 1974.  On 20 September 1974, he accepted NJP for absenting himself from his place of duty.

	e.  The applicant's separation packet is not available for review, but his record contains orders, which confirm his discharge, on 15 January 1975, under other than honorable conditions.  His DD Form 214 reflects his separation date as 15 January 1974; in addition, it lists the separation authority as chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  His DD Form 214 also shows he had 83 days of lost time and indicated he had completed 10 years of secondary/high school. 

	f.  He reenlisted in the Regular Army on 23 June 1980 and was honorably discharged on 15 July 1980 per paragraph 5-33 (The Trainee Discharge Program), AR 635-200.  

	g.  The applicant's record does not include documentary evidence showing he completed his GED.

4.  Due to the unavailability of the applicant's separation packet, we are unable to determine the specific circumstance(s) that led to his discharge; however, despite the unavailability of the applicant's separation packet, and in light of the record copy of his DD Form 214, the Board presumes the applicant's leadership completed his separation properly.  

5.  Discharges under chapter 10, AR 635-200 were voluntary and offered in-lieu of trial by court-martial.  The applicant requests the upgrade of his character of service so he can obtain education and housing assistance benefits.  He has been receiving health benefits from the VA for drug addiction and other medical conditions.  In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include DoD guidance relating to liberal consideration when considering discharge upgrades, the Board found that partial relief was warranted.  Based upon the type of misconduct, as well as the demonstrated growth from the misconduct over an extended period of time, the Board determined that providing clemency to the applicant by upgrading his characterization of service was appropriate.  For that reason, the Board recommended upgrading the discharge characterization to Under Honorable Conditions (General).

However, because the statements of the applicant about receiving a GED was not corroborated with documentary evidence, the Board conclude there was insufficient evidence to grant changing the educational level of the applicant to show his received his GED.  




BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by upgrading the characterization of his discharge to Under Honorable Conditions (General).
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his educational level to reflect the applicant obtained a GED certificate.
3.  Prior to closing the case, the Board noted the administrative note below by the analyst of record and recommended that change also be completed to more accurately depict the military service of the applicant.
	 
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.



ADMINISTRATIVE NOTE(S):

1.  AR 635-5 (Separation Documents) in effect at the time, prescribed policies and procedures for the preparation of the DD Form 214.  It stated the DD Form 2145 was the most vital document a Soldier received from the Army because it contained important information for determining benefits and possible future civilian employment.  The regulation required item 9d (Effective Date) to list the Soldier's effective date of separation.

2.  As a result, amend his DD Form 214, ending 15 January 1974, by deleting the year in item 9d and replacing it with "1975."


REFERENCES:

1.  Title 10, USC, 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.  Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  

2.  AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations.

	a.  Paragraph 1-9d (Honorable Discharge).  An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance.  A Soldier's service could be characterized as honorable if he/she received at least "Good" for conduct, and at least "Fair" for efficiency.  In addition, the Soldier could not have one general court-martial or more than one special court-martial conviction.

	b.  Paragraph 1-9e (General Discharge).  A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 10 permitted a Soldier to request discharge for the good of the service when they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial, United States 1969 (Revised Edition), included a bad conduct or dishonorable discharge as a punishment.  The Soldier could submit such a request at any time after court-martial charges were preferred.  Commanders were to ensure the request for discharge was a personal decision, free of coercion, and that the Soldier was given a reasonable amount of time to consult with counsel.  Once the Soldier made the decision to request discharge, he/she had to put it in writing and counsel was required to sign as a witness.  Once approved, an undesirable discharge was normally furnished, but the discharge authority could direct either an honorable or general discharge, if warranted.

3.  The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments showed Article 86 (AWOL for more than 30 days), UCMJ, included a dishonorable discharge.

4.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  

5.  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 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.  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)	 AR20160016763


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