IN THE CASE OF: BOARD DATE: 19 April 2019 DOCKET NUMBER: AR20160018535 APPLICANT REQUESTS: an upgrade of his under honorable conditions (general) 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) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 all test scores were not correct and the recruiting officer also changed scores. He hit his commanding officer for the language he used to his mother. He further adds that he should have never been enlisted due to his educational level and his brother being stationed in Vietnam. 3. On 30 September 1970, he enlisted in the Regular Army. The applicant did not complete training requirements and was not awarded a military occupational specialty. 4. A review of the applicant’s record shows he was absent without leave (AWOL) from 3 March 1971 to 6 June 1972 and from 26 June to 5 July 1972. Approximately 472 days. 5. In June 1972, the applicant voluntarily requested a discharge for the good of the service in-lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). a. 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 provisions of chapter 10, AR 635-200. He was also advised of the implications that were attached to it. b. He submitted statements in his own behalf and stated in part, his son had a bad heart at condition at the age of 3 months old and it was very trying on his wife. He was 26 years old and did not graduate from high school. He would like to obtain his high equivalency diploma and believed he did not qualify to be in the Army. He understood the full effects of receiving an undesirable discharge. c. The applicant was medically cleared and his chain of command recommended approval of his discharge request with the issuance of an Undesirable Discharge Certificate. d. The separation authority approved the applicant’s discharge request for the good of the service with an Undesirable Discharge Certificate 6. On 5 July 1972, the applicant was discharged accordingly. He completed 5 months and 22 days of net active service. The applicant was not awarded a personal decoration. He had 472 days of lost time, and the highest level of civilian education he attained was the 11th grade of high school. 7. In April 1975, the Army Discharge Review Board (ADRB) denied his request for an upgrade of his discharge. 8. In September 1976, the Army Board for Correction of Military Records (ABCMR) denied his application for an upgrade of his discharge. 9. On 29 May 1979, he applied to the ADRB for an upgrade of his discharge and requested to appear before the Board. 10. On 27 October 1980, the applicant accompanied by counsel appeared before the ADRB, and was granted partial relief. The ADRB found that his contention concerning a lack of education was mitigating; however, the applicant’s record did not support, nor was evidence presented to substantiate recruiter misconduct. His discharge was upgraded to general, under honorable conditions. 11. Army Regulation 635-200 states that, 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. 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. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. 12. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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) 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. 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. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160018535 4 ABCMR Record of Proceedings (cont) AR20160018535 1