ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    11 April 2019

	DOCKET NUMBER:  AR20160018177


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* (DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of the DD Form 149 (Application for Correction of Military Records)

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 badly needs his benefits.  He did not harm anyone, steal anything, or lie.

3.  On 6 December 1972, at the age of 18 years old, the applicant enlisted in the Regular Army for a period of 4 years.  

4.  His record shows he accepted nonjudicial punishment (NJP) for on:

* 25 June 1973 for failing to go to appointed place of duty on five occasions
* 16 January 1974 for willfully disobeying a noncommissioned officer (NCO) and for leaving his place of duty

5.  On 1 November 1973, the applicant was convicted by special court-martial for one specification of disobeying his noncommissioned officer and one specification of disrespecting his NCO.  He was sentenced to confinement with hard labor for two months and forfeiture of pay.  On 21 November 1973, the sentence was approved by the convening authority and ordered executed.

6.  On 3 December 1977, court-martial charges were preferred against the applicant for:  

* failing to go to his appointed place of duty
* going from his appointed place of duty without authority
* willfully disobeying his superior noncommissioned officer on two occasions
* wrongfully using provoking gestures:  brandishing a mop handle toward a Soldier

7.  On 12 December 1974, 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 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.

8.  The applicant's  chain of command recommended approval of his request, the case was legally reviewed by the Staff Judge Advocate, 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 Certificate.

9.  On 26 December 1974, he was discharged accordingly, his service was characterized as UOTHC.  He completed 2 years and 21 days of total active service.    His DD Form 214 shows:

* he was awarded or authorized the National Defense Service Medal
* Lost Time:  58 days

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

11.  On 25 May 1975, 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 felt his military service as a whole should be considered and the fact that since discharged he has been a model citizen; he was associated with the Scouts and the Big Brother campaign; and he was married and a good husband.  The punishment was too severe.  He requested an upgrade so that he could find employment.  On 20 August 1975, the ADRB denied his request.

12.  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.

13.  The applicant states he did not harm anyone, he did not steal, and he did not lie.  The record shows he enlisted at the age of 18 years old, he accepted two NJPs, and was convicted by a special court-martial.  

14.  In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that partial relief was warranted.  Based upon the type of misconduct which resulted in the discharge, the age of the applicant at the time and the passage of time, the Board concluded that clemency was appropriate by upgrading the characterization of service of the applicant to Under Honorable Conditions (general).  

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:

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 reissuing the applicant a DD Form 214 showing his characterization of service as general, under honorable conditions.

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 upgrading the characterization of his discharge to Honorable.
	 
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, 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.  

	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)	 AR20160018177


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