ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		IN THE CASE OF:  

	BOARD DATE:  23 May 2019

	DOCKET NUMBER:  AR20170001105


APPLICANT REQUESTS: 

* an upgrade of his under other than honorable conditions discharge
* personal appearance before the Board
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States
* DD Form 214 (Report of Separation from Active Duty)

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 the officer in charge of his discharge told him he could get his discharge changed in 10 or 15 years.  He is older now and have the time to pursue his discharge upgrade request.  He believes his discharge character of service should have been general under honorable conditions.
3.  A review of the applicant’s service records shows the following:

	a.  He enlisted in the Regular Army on 27 January 1971.  He served in Vietnam from 30 June 1971 to 31 March 1972.  

	b.  On 26 October 1973, he was honorably released from active duty under the provisions of AR 635-200, chapter 5.  His DD Form 214 for this period of service shows he completed 2 years and 9 months of active service.

	c.  He enlisted in the Regular Army on 1 April 1975.

	d.  He received nonjudicial punishment on 13 December 1976 for on or about 18 November 1976 without authority, absent without leave (AWOL).

	e.  Court-martial charges were preferred on 7 March 1977.  A DD Form 458 (Charge Sheet) is not available for review; however, other documents/memoranda indicate he was charged with one specification of being AWOL from 22 December 1976 to 3 March 1977.  

	f.  He consulted with legal counsel on 7 March 1977.  Counsel advised him of the contemplated trial by court-martial for offenses punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  In his request for discharge, he acknowledged:

* he was making the request of his own free will and he had not been subjected to any coercion
* by submitting this request he was acknowledging he was guilty of the charge(s) against him or a lesser included offense
* he understood that if the discharge request was accepted he could be furnished an Under Other Than Honorable Discharge
* he understood if such a discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws

	g.  Consistent with the chain of command recommendation, on 7 March 1977, 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.

	h.  On 17 March 1977, the separation authority (general court martial convening authority) approved his request for discharge under the provisions of AR 635-200, chapter 10 and directed his service be characterized under other than honorable conditions. 

	i.  On 19 May 1977, the applicant was discharged from active duty.  His DD Form 214 shows he was discharged under the provisions of AR 635-200, chapter 10, with an under other than honorable condition characterization of service.  He completed 1 year, 11 months, and 9 days of active service, and he had 71 days of lost time.  He was awarded or authorized: 

* National Defense Service Medal
* Vietnam Service Medal
* Vietnam Campaign Medal
* Overseas Service Ribbon
* Sharpshooter Marksmanship Qualification Badge with Grenade Bar

4.  By regulation AR 635-200, an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  An Under Other Than Honorable Conditions Discharge Certificate will normally be furnished an individual who is discharged for the good of the service.

5.  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 a lack of mitigating factors for the AWOL offenses and a lack of character evidence submitted by applicant to show he has learned and grown from the events which led to his discharge, 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.

	 
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.  Paragraph 1-13 (Honorable discharge) states an honorable discharge is a separation with honor.  Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude.  Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate.

	b.  Paragraph 1-13b (General discharge) A general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 1-13c (Under other than honorable conditions) A discharge under other than honorable condition is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, for security reasons, or for the good of the service

	d.  Paragraph 11-2 (Bad Conduct Discharge ) A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and ABCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, ABCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

ABCMR Record of Proceedings (cont)	 AR20170001105


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