IN THE CASE OF:  BOARD DATE:  27 March 2020 DOCKET NUMBER:  AR20170000857 


APPLICANT REQUESTS:  change Under Other Than Honorable Conditions discharge to General Under Honorable Conditions. 

APPLICANT’S SUPPORTING DOCUMENT 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,U.S. Code, section 1552 (b); however, the Army Board for Correction of MilitaryRecords conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states, in effect, he would like a discharge upgrade because hehad mental issues.

3.The applicant's service records contain the following documents for theBoard's consideration:

a.Summary Court-Martial Order Number 8, published by Headquarters, 1stEngineer Battalion, 1st Infantry Division, dated 29 March 1973, which shows: 

.the applicant plead guilty to and was found guilty of stealing a walletand two specification of AWOL

.he was sentenced to forfeiture of $150.00 for one month, hard laborwithout confinement for 14 days and reduction to the grade of Private



b.A DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ),dated 24 April 1973, which shows: 

.the applicant was found guilty of being Absent Without Leave (AWOL)from 23 April 1973 at 0700 until 23 April 1973 at 1715


.the applicant did not demand trial by court-martial

.the applicant did not submit matters

.his punishment included extra duty and restriction for 7 days



c.A DA Form 268 (Report for Suspension of Favorable Personnel Actions),dated 8 May 1973 showing the applicant departed AWOL effective 0700 on  
7 May 1973.  The final report dated 6 June 1973 indicates the applicant was dropped from rolls because of he was AWOL starting on 7 May 1973. 

d.Two DA Forms 188 (Extract Copy of Morning Report) showing theapplicant was AWOL starting on 7 May 1973.  

e.A DA Form 3082-R (Statement of Medical Condition), dated30 August 1973, wherein the applicant states there were no changes in his medical condition. 

f.Special Orders Number 241, published by Headquarters, US Army FieldArtillery Center and Fort Sill, dated 29 August 1973, showing: 

.the applicant was being discharged from the service

.he was receiving an undesirable discharge

.effective date of discharge was 30 August 1973

.reason for discharge was for the good of the service



g.A DD Form 214 (Armed Forces of the United States Report of Transfer orDischarge) which shows: 

.the applicant was discharged on 30 August 1973

.he received an Under Other Than Honorable Conditions discharge



4.The applicant's service records are void of the request for discharge for thegood of the service and documentation indicating he was charged with anoffense under the Uniform code of Military Justice.

5.The applicant did not provide documentary evidence for the Board'sconsideration.

6.In the processing of this case, an advisory opinion was obtained on
2 March 2020, from the Army Review Board Agency Medical Department.  Theadvisory official stated:

a.In accordance with the 3 Sep 2014 Secretary of Defense Liberal GuidanceMemorandum and the 25 August 2017, Clarifying Guidance, there is no 
documentation supporting a behavioral health diagnosis at the time of his discharge.  No documentation was submitted regarding any diagnosed behavioral health conditions 

b.A review of his military records indicate that the applicant did meet medicalretention standards In Accordance With Army Regulation 40-501; 

c.There is no behavioral health condition to consider with respect tomitigation of the misconduct that led to his discharge.  A copy of the complete advisory opinion has been provided to the Board for their review and consideration. 

7.The applicant was provided a copy of this advisory opinion on 6 March 2020to provide him an opportunity to comment and/or submit a rebuttal.  He did notrespond.

8.See applicable references below.

BOARD DISCUSSION: 

1.The Board carefully considered the applicant’s request, supportingdocuments, evidence in the records and published DoD guidance forconsideration of discharge upgrade requests.  The Board considered theapplicant’s statement, his record of service, the frequency and nature of hismisconduct and the reason for his separation.  The Board considered the reviewand conclusion of the Medical Advising official.  The Board found insufficientevidence of in-service mitigation to overcome the misconduct and the applicantprovided no evidence of post-service achievements or letters of reference insupport of a clemency determination.  Based on a preponderance of evidence,the Board determined that the character of service the applicant received uponseparation was not in error or unjust.

2.After reviewing the application and all supporting documents, the Boardfound that relief was not warranted.

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XXX :XXX :XXX 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. 



X CHAIRPERSON

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, U.S. Code, section 1552(b), provides that applications for correctionof military records must be filed within 3 years after discovery of the allegederror or injustice.  This provision of law also allows the Army Board forCorrection of Military Records (ABCMR) to excuse an applicant's failure totimely file within the 3-year statute of limitations if the ABCMR determines itwould be in the interest of justice to do so.

2.Army Regulation 635-200 (Personnel Separations), in effect at the time,
stated:

a.An individual who has committed an offense or offenses, the punishmentfor which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.  The request for discharge may be submitted at any time after court-martial charges are preferred against him, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred.  The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court-martial convening authority.  An individual who is under a suspended sentence of a punitive discharge may likewise submit a request for discharge for the good of the Service. 

b.An undesirable discharge certificate will normally be furnished anindividual who is discharged for the good of the Service.  If warranted, however, the discharge authority may direct an honorable or general discharge.  The reason and authority for discharge (item 9c, DD Form 214) will be "Chapter 10, AR 635--200," and the appropriate SPD will be given.  

c.A general discharge is a separation from the Army under honorableconditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.  When a member's service is characterized as general, except when discharged by reason of misconduct, unfitness, unsuitability, homosexuality or security, the specific basis for such separation will be included in the individual's military personnel record. 

3.On 25 August 2017 the Office of the Undersecretary of Defense for Personneland Readiness issued clarifying guidance for the Secretary of Defense Directiveto DRBs and BCM/NRs when considering requests by Veterans for modification
of their discharges due in whole or in part to:  mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment.  Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences.  The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge.  

4.On 25 July 2018, the Under Secretary of Defense for Personnel andReadiness issued guidance to DRBs and BCM/NRs regarding equity, injustice, orclemency determinations.  Clemency generally refers to relief specifically grantedfrom a criminal sentence.  BCM/NRs may grant clemency regardless of the typeof court-martial.  However, the guidance applies to more than clemency from asentencing in a court-martial; it also applies to other corrections, includingchanges in a discharge, which may be warranted based on equity or relief frominjustice.

a.This guidance does not mandate relief, but rather provides standards andprinciples 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 upgradedcharacter 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//