ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 June 2019 DOCKET NUMBER: AR20170000123 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions to honorable * a personal appearance before the Board 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 would like an upgrade of his under other than honorable conditions to honorable. He would also like a personal appearance before the Board. 3. A review of the applicant’s service record show the following: a. He enlisted in the Regular Army on 8 August 1973. b. On 7 November 1973, he accepted non-judicial punishment (NJP) for failure to be at his appointed place of duty. c. On 12 December 1973, he was convicted by a special court-martial of five specifications of failing to be at his appointed place of duty. The court sentenced him to forfeiture of $100.00 for 5 months. d. On 10 January 1974, court-martial charges were preferred against him for: * one specification of disrespectful language to a non-commissioned officer * one specification of disobeying a lawful order * e. On 11 January 1974, he consulted with legal counsel and subsequently requested discharge under the provision (UP) of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10. In his request, he acknowledged: * he was advised of the basis for the contemplated separation action under provisions of chapter 10, AR 635-200 * he was advised if his request for discharge was accepted he may be discharged under other than honorable conditions and furnished an undesirable discharge certificate * he was advised that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge * he was advised once the request was submitted, it may be withdrawn only as provided in paragraph 10-5, AR 635-200 * he elected not to submit a statement in his own behalf * he retained a copy of this request for discharge and of any enclosures submitted f. On 11, 14, and 16 January 1974, the applicant’s immediate, intermediate, and senior commanders recommended approval for discharge. g. On 31 January 1974, the separation authority approved the applicant’s discharge with an Undesirable Discharge Certificate. h. On 6 February 1974, the applicant was discharged under other than honorable conditions under the provisions of AR 635-200 chapter 10 in the rank of private/E-1. His DD Form 214 show he completed 5 months and 23 days of active service with 4 days of lost time. He received the National Defense Service Medal. 4. By regulation, a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon a short term of service completed prior to a pattern of misconduct, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 6/13/2019 X CHAIRPERSON Signed by: 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. AR 635-200 Personnel Separations-Enlisted Personnel, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 states that a Soldier who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. 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. 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 based on equity, 1. 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. 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.