ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 May 2019 DOCKET NUMBER: AR20170001021 APPLICANT REQUESTS: an upgrade of his under other than honorable discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 to upgrade his service status to an honorable discharge. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 8 July 1971. b. He received nonjudicial punishment on: * 9 March 1972, he failed to go to his appointed place of duty and disobeying a lawful order from a superior noncommissioned officer * 8 May 1972, for being absent without leave (AWOL) on 3 May 1972, his punishment in part, reduction to E-2 c. His DD Form 458 (Charge Sheet), dated 28 June 1972, shows court-martial charges were preferred against him for two specifications of failing to be at the appointed place of duty, one specification of incapacitated for proper performance of his duties, three specifications of willfully disobeying a lawful order, one specification of disrespectful language toward a superior noncommissioned officer and one specification of being AWOL from 5 July through 7 July 1972. a. d. He was admitted to the drug and observation/detoxification ward for use of barbiturates and cocaine on 10 July 1972, at the 121st Evacuation Hospital, Seoul Korea, where he refused rehabilitation and was discharged to his unit. e. He consulted with legal counsel on 11 July 1972 and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, discharge for the good of the Service. He acknowledged: * he understood that if his request for discharge was accepted he could be discharged under other than honorable conditions * he would be deprived of many or all Army benefits administrated by the Veterans Administration * he may be deprived of his rights and benefits of a Veteran under both Federal and State laws * he may expect to encounter substantial prejudice in civilian life because of an other than honorable conditions discharge f. Consistent with the chain of command recommendation, on 23 July 1972, the separation approval authority approved the applicant’s request for discharge for the good of the Service. He would be discharged with an under other than honorable conditions discharge and reduced to the lowest enlisted pay grade. g. On 23 July 1972, he was discharged from active duty under the provisions of AR 635-200, chapter 10, discharge for the good of the Service, his characterization is under conditions other than honorable. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year, and 1 day of active service. He has lost time from 5 through 6 July 1972 and 10 through 22 July 1972. h. The Office of the Adjutant General, Washington, DC, by letter, to the applicant, on 15 September 1977, informed him that the Army Discharge Review Board, after careful consideration of his military records and all other available evidence, determined that he was properly discharged and denied his request for a change in the type and nature of his discharge. 4. By regulation AR 635-200, chapter 10 an individual who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service. The request may be submitted at any time after charges have been preferred. An Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 5. By law and regulation, periods of AWOL, confinement, and desertion are considered lost time which is not creditable service for pay, retirement, or veterans' benefits. The 1. lost time is required to be listed on the DD Form 214 even if the periods of time lost were later made up. 6. In reaching its determination, the Board can consider the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 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 the pattern of misconduct which led to the discharge and a lack of character evidence submitted by the applicant to show he has learned and grown from those events, 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. 5/28/2019 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. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the version in effect at the time provided that a member who committed 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 at any time after court-martial charges were preferred,. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service. b. Paragraph 1-9d (Honorable discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). c. Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions 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 because of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. d. Chapter 10 of this regulation states that an individual who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service. The request may be a. submitted at any time after charges have been preferred. An Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 3. Army Regulation 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214. The purpose of the separation document is to provide the individual with documentary evidence of their military service. Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214. The version of the regulation in effect at the time stated Item 30 shows mandatory entries. One of those entries pertained to time lost under Title 10, U.S. Code, section 972. The regulation requires that the dates of time lost during the current enlistment will be entered on the DD Form 214. For enlisted personnel, the inclusive periods of time lost to be made good under Title 10, U.S. Code, section 972, and periods of non-inclusive time after ETS will be entered. Time lost under Title 10, U.S. Code, section 972, is not creditable service for pay, retirement, or veterans' benefits; however the Army preserves a record of it (even after it has been made up) to explain which service between the date of entry on active duty and the date of separation is creditable service. 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. 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, 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.