ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:     9 April 2019

	DOCKET NUMBER:  AR20160018105


APPLICANT REQUESTS:  The applicant requests his under other than honorable conditions (UOTHC) discharge under other than honorable conditions be upgraded to under honorable conditions (general).

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 while stationed in Germany he developed a drinking problem and upon returning to the US, the problem became worse.  He started to have serious issues that resulted in repeated disciplinary actions.  After being transferred to a retraining brigade, he went AWOL due his lack of discipline and rash decision making.  He regrets his actions, accepts responsibility, and would like and upgrade due to his need for VA health care.

3.  On 18 June 1973, the applicant enlisted in the Regular Army.  His records show he entered the Army at the age of 15 years, 8 months and 16 days.  His record is void of a parental consent, approved waivers or other evidence that may authorize enlistment at this age.

4.  The applicant received non-judicial punishment (NJP) for being absent without leave (AWOL) for:

* On or about 1 March 1976 to on or about 2 March 1976
* On or about 30 March 1976 to on or about 3 April 1976
* On or about 30 November 1976 to on or about 13 December 1976
* On or about 22 February 1977 to on or about 2 March 1977

5.  On 21 July 1977, he was charged for being AWOL from on or about 9 April 1977 to on or about 3 May 1977 and on or about 29 May 1977 to on or about 20 July 1977.

6.  On 21 July 1977, he was given a mental and medical exam.  The exam shows he was mentally responsible and the applicant wrote that he is in good health.  He was shown to be qualified separation.

7.  On 22 July 1977, 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 statements in his own behalf.  The applicant’s record does not have a copy of his statement.

   a.  The applicant's chain of command recommended approval of his request and the appropriate separation authority approved the applicant's request.  
   
     b.  The appropriate authority approved the applicant’s request for the good of the service, directing the applicant be reduced to the lowest grade possible and that his service be characterized as UOTHC.

8.  On 8 August 1977, he was discharged accordingly.  His DD Form 214 shows he completed 1 year, 10 months, and 10 days.  Approximately 103 days.

9.  The applicant applied to the ADRB to upgrade his discharge.  On 22 May 1985, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized.  

10.  The applicant states he developed a drinking problem while stationed in Germany and after returning to the US it became worse which resulted in repeated disciplinary actions.  Based on the available evidence we are unable to determine how he able to enlist as the age of 15.  The records do not show he was in a substance abuse program or treated for substance abuse.

11.  Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial.  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.  Paragraph 5-3 states the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority.  The discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him.

12.  ?The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, 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, the Board found that relief was warranted.  Based upon the length of service completed prior to the misconduct beginning, the age of the applicant at the time, and the misconduct which resulted in the discharge, the Board concluded that upgrading the discharge characterization of service was appropriate.  

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his records to show: 
* Character of Service: Honorable
* Separation Authority:  Army Regulation 635-200, paragraph 5-3 
* Separation Code:  JKA
* Narrative Reason for Separation:  Secretarial Plenary Authority
* Reenlistment Code: RE1

	 
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.

     a.  Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service.

     b.  Paragraph 5-3 states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority.  Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him.  Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders.

     c.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

     d.  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.

     e.  An UOTHC is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct.  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. 

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)	 AR20160018105
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