ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

	 

	BOARD DATE:  22 October 2019

	DOCKET NUMBER:  AR20170001638

APPLICANT REQUESTS:  an upgrade of his under conditions other than honorable 
discharge to a general 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 (ABCMR) 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 was a 20 year old impulsive Latino.  He got married, had 
a child and got divorced all in a 2 ½ year span.  His ex-wife proceeded to marry one 
of his best friends which was a lot to take in for a 20 year old young man.  He tried to 
take leave but, was unsuccessful.  He tried to reach out for assistance from the 
Chaplain but he also was unable to assist.  He made a bad decision to leave 
regardless and discovered that was a bad choice.  He returned to Fort Dix after 6 
months and received an administrative discharge.  He is making another attempt to 
reach out to the Army one last time, he is 60 years of age and not in the best of 
health.  Once buried, he would like the flag over his coffin because he served with 
honor and pride.  He received excellent performance reviews and an ARCOM medal 
for his service in Korea.  He asks that Board one last time to grant his upgrade.  He 
is proud to have served and he thanks the Board.

3.  A review of the applicant’s service record shows:

	a. Having prior service in the United States Army Reserves, he enlisted in the 
Regular Army on 16 August 1976.

	b.  He served in Korea from 17 January 1977 to 16 January 1978.

	c.  DA Form 3835, Notice of Unauthorized Absence from United States Army, 
dated 23 March 1979, showed the applicant absent without leave (AWOL) on 8 
December 1978 and dropped from the rolls on 7 January 1979.

	d.  DA Form 3836, Notice of Return of US Army Member from Unauthorized 
Absence, dated 21 June 1979, shows the applicant return on 18 June 1979 at Fort 
Dix.

	e.  Court-martial charges were preferred on the applicant on 21 June 1979.  His 
DD Form 458 (Charge Sheet) indicates he was charged with one specification of 
AWOL on or about 8 December 1978 and remained so until on or about 18 June 
1979.

	f.  He consulted with legal counsel on 22 June 1979 and subsequently requested 
discharge under the provisions of chapter 10, Army Regulation (AR) 635-200 
(Personnel Separations – Enlisted Personnel).  In his request, he acknowledged:

*	guilty of the charge
*	afforded the opportunity to consult with appointed counsel for consultation
*	he shall be deprived of many or all Army benefits
*	may be discharged under other than honorable conditions and furnished 
an Under Other Than Honorable Discharge Certificate 
*	he may be ineligible for many or all benefits administered by the Veterans’ 
Administration
*	he may be deprived of his rights and benefits as a veteran under both 
Federal and State law
*	he may expect to encounter substantial prejudice in civilian life
*	the maximum punishment

	g.  Consistent with the chain of command recommendations, on 5 August 1979, 
the separation authority approved the applicant’s request for discharge.  He would 
be reduced to the lowest enlisted grade and issued an Under Other Than Honorable 
Conditions Discharge Certificate.

	h. He was discharged from active duty on 24 August 1979.  His DD Form 214 for 
this period of service shows he completed 2 years, 5 months and 28 days of active 
service.  It also shows he had 192 days lost under 10 USC 972 from 780618 thru 
791208.

4.  On 22 April 1982, the Army Discharge Review Board (ADRB) reviewed the 
applicant's discharge processing but found it proper and equitable.  The ADRN 
denied his request for an upgrade of his discharge.

5.  By regulation, 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 undesirable discharge 
certificate will normally be furnished for an individual who is discharged for the good 
of the service.  If warranted, however, the discharge authority may direct an 
honorable or general discharge. 

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 found relief was not warranted.  Based upon the short term on honorable 
service completed prior to a pattern of multiple lengthy AWOL offenses, the Board 
concluded that the characterization of service received at the time of separation 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 (AR) 635-200, in effect at the time, sets forth the basic authority 
for the separation of enlisted personnel.

	a. 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.

	b. 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.

	c. Chapter 10 of that regulation provides that 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 undesirable discharge certificate will normally be furnished for an 
individual who is discharged for the good of the service.  If warranted, however, the 
discharge authority may direct an honorable or general discharge.

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 (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 acknowledgment that a relative error or injustice was committed, or 
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 benefits or similar benefits that might have been received if 
reason for the discharge had been for the revised reason or had the upgraded 
service characterization.


ABCMR Record of Proceedings (cont)	 AR20170001638

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