ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF: 

	BOARD DATE:        1 April 2019

	DOCKET NUMBER:  AR20160019230


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 he entered basic training at the age of 17 with a new wife who just gave birth.  During that time his wife struggled as a new mother and him being away.  He had limited contact with them and felt he needed to go and support them so he went AWOL.  After returning he received an Article 15, was charged with desertion and received a dishonorable discharge.  He feels his discharge was a little extreme given the fact that his young family was in extreme hardship.  A dishonorable discharge can plague someone's life and follow them forever and would greatly appreciate any consideration given to his request.  

3.  On 21 April 1972, the applicant enlisted in the Regular Army at the age of 17.

4.  On 20 June 1972, he received non-judicial punishment (NJP) for being absent without leave (AWOL) from on or about 21 May 1972 to on or about 19 June 1972.  During the proceedings the applicant submitted a statement on his behalf.

5.  On 25 September 1972, he was charged for being AWOL from on or about 17 July 1972 and remaining absent until on or about 22 September 1972.  Approximately 2 months and 5 days.
6.  On 16 October 1972, 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. 

7.  On 7 November 1972, he was discharged accordingly.  His DD Form 214 shows he completed 3 months and 13 days of total active service, has lost time from 21 May 1972 through 18 June 1972 and 17 July 1972 through 21 September 1972.  

8.  The applicant states he feels his discharge was a little extreme given the fact that he was young and experiencing an extreme family hardship.  He felt the punishment was extreme upon his return.  His records show he enlisted at the age of 17 and went AWOL approximately within 2 months of reporting to basic training.  In the separation process the applicant did write a statement advising of his special circumstances.  

9.  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.

10.  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, the Board determined that relief was warranted.  Based upon the form of misconduct and the age of the applicant at the time of the misconduct, the Board found that upgrading the applicant's characterization of service to Honorable 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 the evidence presented is 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 DD Form 214 to show his characterization of service as 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)	 AR20160019230
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