ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 May 2019 DOCKET NUMBER: AR20170001282 APPLICANT REQUESTS: an upgrade of his under other an honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Honorable Discharge Certificate * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * DD Form 215 (Correction to DD Form 214) 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 has an Honorable Discharge Certificate and wants the DD Form 214 to match. 3. The applicant provides a copy of an Honorable Discharge Certificate dated 16 July 1970. 4. A review of the applicant’s service records shows: . a He was inducted in the Army of the United States on 14 July 1967. b. He served in Vietnam from 11 December 1967 to 6 November 1968. c. He was convicted on 27 August 1969 by a special court-martial of two specifications of being absent without leave (AWOL) from 7 November 1968 to 18 December 1968 and from 2 January 1969 to 10 July 1969. He was sentenced to confinement at hard labor for 3 months and reduction to pay grade E-1. The convening authority approved the sentence on 4 September 1969. d. He departed AWOL on 27 October 1969 and he was dropped from the rolls on 11 December 1969. He was apprehended by civilian authorities on 15 May 1970 and returned to military control. e. Court-martial charges were preferred against the applicant on 20 May 1970. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of being AWOL from 27 October 1969 to 15 May 1970. f. He consulted with legal counsel on 17 June 1970 and subsequently requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He acknowledged: * maximum punishment * 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 undesirable discharge g. Consistent with the chain of command recommendation, on 29 June 1970, the separation approval authority approved the applicant’s request for discharge for the good of the service. He would be issued an Undesirable Discharge Certificate and reduced to the lowest enlisted pay grade. h. On 16 July 1970, he was discharged from active duty under the provisions of AR 635-200, chapter 10. His DD Form 214 shows he completed 2 years, 4 months, and 13 days of active service. It also shows he was awarded or authorized: * National Defense Service Ribbon * Vietnam Service Medal * Vietnam Campaign Medal * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Marksman Marksmanship Qualification Badge with Rifle Bar (M-14) 5. On 21 July 1982, the Army Discharge Review Board determined he was properly discharged and denied his request for an upgrade. 1. 6. By regulation, a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. 7. 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 applicant having three lengthy AWOL offenses over three years, 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. 5/13/2019 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. Army Regulation 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(1) (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. b. Paragraph 1-9e(1) (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 discharge by reason of misconduct, unfitness, and unsuitability. c. Chapter 10 of this regulation states a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. 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 1. that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.