ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 May 2019 DOCKET NUMBER: AR20170001163 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. 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 that he was a very young man when he was enlisted and did not consider the actions of his behaviors. It was his first time being away from home and his family. He was lonely, scared and got mixed up with the wrong crowd and started using drugs and alcohol. He did these things to try to fit in and it costed him more than he realized. He is asking for forgiveness and an upgrade. He is in desperate need of medical care from the Veterans Affairs. 3. A review of the applicant’s service record shows: a. He enlisted in the Massachusetts Army National Guard (MAARNG) on 26 July 1980. He then enlisted in the Regular Army on 5 November 1980. b. He served at Fort Sam Houston, TX from 14 November to 15 April 1980 and Fort Dix, NJ from 16 April 1980 to 5 May 1981. c. His DD Form 2-1 (Personnel Qualification Record-Part II), reflects his duty status changed as follows: * Absent without leave (AWOL) on 5 May 1981 * Dropped from the rolls (DFR) on 4 June 1981 * Return to duty on 26 June 1981 * * AWOL on 2 July 1981 * DFR on 1 August 1981 d. Orders 131-11, issued by the Commonwealth of MA Military Division, the Adjutant General’s Office, Boston, MA, on 29 June 1981, discharging him from the MAARNG. The orders also assigned him to D Company, 3rd Battalion, 5th Basic Training Brigade, Fort Dix, NJ for separation processing under Army Regulation (AR) 630-10 (Absence without Leave and Desertion: Personnel Absences) with a general discharge effective 3 June 1981. e. Orders 347-76, issued by the United States Army Training Center and Fort Dix (USATC&FD), Fort Dix, NJ, on 13 December 1982, ordering reassignment to A Company, U.S. Army Personnel Control Facility, USATC&FD, Fort Dix due to pending conviction and sentencing. He was confined at Plymouth County House of Correction, Plymouth, MA effective 15 April 1982. f. DD Form 458 (Charge Sheet) indicates he was charged with being AWOL from 10 August 1982 to 10 August 1983. g. Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. In his request for discharge, he indicated: * he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person * he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions * he acknowledged he understood if his discharge request 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 acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected not to submit a statement on his own behalf h. Orders 224-77, issued by the USATC&FD, Fort Dix, NJ, on 12 August 1983, assigning him to Alpha Company, U.S. Army Personnel Control Facility, (USATC&FD), Fort Dix effective 10 August 1983. i. His immediate and intermediate commanders recommended approval of his request for discharge with the issuance of an under other than honorable conditions discharge. a. j. Consistent with the chain of command's recommendation, the separation authority approved his request for discharge under the provisions of AR 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge. k. He was discharged from active duty on 21 September 1983. He was discharged under the provisions of AR 635-200, chapter 10. He completed 7 months and 18 days of active service. His DD Form 214 shows he was awarded or authorized the Marksman Marksmanship Qualification Badge (M-16) 4. By regulation, AR 635-200, the issuance of a discharge under the provisions of chapter 10, AR 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial. 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 the short term of service completed prior to multiple AWOL offenses, 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 :MG :PB :BS 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. 5/16/2019 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’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 3-7b provides that 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 of that regulation provided , in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. An undesirable discharge was normally considered appropriate. 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, 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 1. original discharge had been for the revised reason or had the upgraded service characterization.