ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    17 April 2019

	DOCKET NUMBER:  AR20160019171


APPLICANT REQUESTS:  The applicant request his under other than honorable conditions discharge be upgraded to honorable.

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 he served honorably for two years and nine months to include serving in a war zone.  During that time he obtained the rank of Specialist (SPC).  He requested leave to go try and save his marriage which was falling apart due to separation; all request were denied so he went AWOL.  

3.  On 18 July 1966, the applicant enlisted in the Regular Army at the age of 17.  

4.  On 18 October 1968, he underwent a Summary Court-Martial and was found guilty for being absent without leave (AWOL) from 14 September 1968 to 10 October 1968.  The sentence was adjudged on 23 October 1968 and he was restricted to the U.S. Army and Engineer Board area for thirty days.

5.  On 8 August 1969, he underwent a Special Court-Martial and was found guilty for being AWOL from 27 February 1969 to 7 August 1969.  The sentence was adjudged on 29 August 1969 and he was restricted to the limits of Fort Meade, for sixty days, forfeit of $50.00 per month of six months, and be reduced to the grade of Private E-1.

6.  On 14 April 1970, 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 not submit statements in his own behalf.  

7.  On 29 April 1970, he was discharged accordingly and received an under conditions other than honorable discharge.  His DD Form 214 shows he completed 2 years, 9 months, and 13 days of net active service.

8.  The applicant states he served honorably until his marriage started falling apart and because of denied leave to go and work on it he went AWOL.  His records show he was promoted from Private (E1) to the rank of Specialist (E4) within a year of being on active duty and served in Thailand.

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.  In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency.


BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when considering discharge upgrades, the Board determined that partial relief was warranted.  Based upon the applicant's petition, his service record, and his statements on his behalf, the Board found that in light of the published DOD guidance on equity, injustice, or clemency to upgrade the characterization of service 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:

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 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 (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.  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.

     d.  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)	 AR20160019171
0

2


1