ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    17 April 2019

	DOCKET NUMBER:  AR20160019300


APPLICANT REQUESTS:  The applicant requests that his undesirable discharge be upgraded.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214  (Certification Release of Discharge)
 

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 that he was young and immature.  He was absent without leave (AWOL) because he went home to help his mother support his siblings on her low income.  An upgrade would allow him to obtain Veteran benefits.

3.  On 29 February 1972, at the age of 18, the applicant joined the Army and was assigned overseas in Germany as a motor transporter.   

4.  On 23 July 1973, the applicant was charged with violation of UCMJ, Article 86 for being AWOL for 175 days:

* AWOL from 26 December 1972 to 8 January 1973
* AWOL from 10 January 1973 to 15 January 1973
* AWOL from 5 February 1973 to 12 July 1973

5.  On 27 July 1973, 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 submit statements in his own behalf, he states, in effect:

	a.  The applicant joined the service to help his mother provide for his siblings when his father passed away. Once in the military, the applicant thought he could adjust to the military way of life but that was not the case. He felt he was harassed and put into situations he did not want to be in, for instance he was offered narcotics.  He obtained a better paying job than the Army while he was AWOL and he felt that if his discharge was approved, he could help his family.

      b.  The applicant's  chain of command recommended approval of his request 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.

6.  On 22 August 1973, he was discharged accordingly, his service was characterized as Undesirable.  His DD 214 shows he completed 11 months and 25 days of total active service, 179 days of lost time and hew was awarded or authorized sharpshooter qualification Badge for the M-16 rifle and grenadier Second Class.  His records show that he had 179 total lost days due to being AWOL with 17 days of excess leave.

7.  Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request 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.

8.  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 DOD guidance on equity, injustice, or clemency.



BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD guidance on liberation consideration when considering discharge upgrades, the Board found that relief was not warranted.  One outcome discussed was to grant partial relief as a result of the clemency based upon the applicant’s age at the time, the type of misconduct and the passage of time.  However, based upon the relatively short term of service completed prior to multiple AWOL offenses and, in the Board’s opinion a lack of mitigating reasons for the misconduct, the Board concluded that the characterization of service received at the time of discharge was appropriate.  For that reason, the Board recommended denying the applicant’s request for relief.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	X:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

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.




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 600-200 (Enlisted Personnel Management System), in effect at the time, stated when the general court-martial authority determined that a Soldier was to be discharged from the service under other than honorable conditions he was reduced to the lowest enlisted grade.  Board action was not required for this reduction.

3.  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. 

   	 

4.  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)	 AR20160019300
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