ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 May 2019 DOCKET NUMBER: AR20170003246 APPLICANT REQUESTS: reconsideration of his previous request for 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) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Previous Record of Proceedings from Army Board for Correction of Military Records (ABCMR) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090004320 on 16 July 2009. 2. The applicant states he was erroneously discharged. 3. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 6 July 1971. b. He served in Germany from 10 December 1971 to 2 October 1972. c. Court-martial charges were preferred on the applicant on 18 July 1973. His DD Form 458 (Charge Sheet) indicated he was charged with one specification of being absent without leave from 1 November 1972 to 9 July 1973. d. Subsequent to legal counsel, the applicant requested discharge under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He acknowledged: * maximum punishment * * he understood that if his discharged was accepted, he could be separated with an under other than honorable conditions discharge and furnished an Undesirable Discharge Certificate * he may be deprived of many or all Army benefits * 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 by reason of an undesirable discharge e. In his request for discharge, he elected to submit a statement on his own behalf. In his statement, counsel stated the applicant was 19 years old and completed the 9th grade. He was divorced and his home of record was in Texas. He was thrown out of his home at the age of 12 and had been in and out of foster homes. f. Consistent with the chain of command recommendation, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, AR 635-200 on 31 July 1973. The applicant was reduced to the grade of E-1. He was issued an Undesirable Discharge Certificate. g. The applicant was discharged from the Army on 31 July 1973 with an under conditions other than honorable characterization of service. His DD Form 214 shows he completed 1 year, 4 months and 19 days of active service and 252 days of lost time. It also shows he was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar. 4. 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 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. 1. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade request, the Board determined that relief was not warranted. Based upon the lengthy AWOL offense, the relatively short term of servie completed prior to the AWOL, and a lack of character evidence presented by the applicant to show he has grown and learned from the misconduct, the Board concluded that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), sets 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 provides, in pertinent part, 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 an individual who is discharged for the good of the service. 2. 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.