RMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20170001419 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge or Dismissal 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 an honorable discharge for family respect before his passing. He has a clean record and at age 63 he has no arrests or convictions. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army (RA) on 31 March 1971. b. He accepted nonjudicial punishment on 8 June 1971 for failure to obey a lawful order by having in his possession ten rounds of 5.56mm ammunition. c. On 30 June 1971, his status changed to absent without leave (AWOL) and on 21 July 1971, he was dropped from the rolls as a deserter. d. On 21 July 1971, a commander’s inquiry memo shows the commander did not have any names or addresses of competent witnesses or close friends available to find out the whereabouts of the applicant. e. A military police report DA Form 3975, on 21 January 1974, shows the applicant was apprehended by the Federal Bureau of Investigation on 14 January 1974. f. On 23 January 1974, DA Form 1569 (Incident/Complaint Report) shows the applicant was released to the Armed Forces Police and he was advised of his rights. g. The complete facts and circumstances surrounding the applicant’s court-martial charges and subsequent separation are not available for the Board to review. However, his record contains: (1) Special Orders Number 38, dated 25 February 1974, shows he was reduced to the lowest enlisted grade and issued an Under Other Than Honorable Discharge Certificate. (2) DD Form 214 (Report of Separation from Active Duty that shows he was discharged from active duty on 25 February 1974, under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10 (in lieu of trial by court-martial) with an under other ta honorable conditions characterization of service. He completed 5 months, and 18 days of active service with 8,091 days lost. He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). 5. By regulation, discharges under the provisions of chapter 10 of AR 635-200 provides that 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. 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 review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 1-13a (Honorable discharge) states that 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. b. Paragraph 1-13b (General discharge) states that 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. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. c. Chapter 10 of this regulation provides that a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. An under other than honorable discharge certificate normally is appropriate for a member who is discharged for the good of the service. However, the discharge authority may direct an honorable or general discharge if such are merited by the member’s overall record during the current enlistment. 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 original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170001419 4 1