ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 June 2019 DOCKET NUMBER: AR20170003423 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 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 to obtain admittance to Veteran’s Affair and the United Services Automobile Association (USAA) benefits. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 1 August 1978. b. His DA Form 2-2 (Insert Sheet to DA Form 2-1, Record of Court Martial Conviction) shows the applicant was charged with being absence without leave (AWOL) on 6 March 1979 to 9 April 1979. He was sentenced to be confined at hard labor for 30 days and reduced to E-1, on 13 June 1979. The unexecuted portion of the sentence to confinement to hard labor for 30 days was suspended until 30 October 1979, as per summary Court-martial Order Number 103, dated 29 June 1979. c. He received nonjudicial punishment on 6 May 1979, for possession of marijuana seeds; his punishment in part, consisted of reduction to E-2. d. Summary Court-martial Order Number 5, dated 13 June 1979 charged the applicant with one specification of AWOL from 6 March 1979 to 9 April 1979. He was sentenced to be reduced to the grade of Private/E-1, forfeit $200.00 per month for one month, confinement at hard labor for 30 days. The sentence was adjudged on12 June 1979. e. On 13 June 1979, only so much of the sentence as provided for reduction to the grade of E-1 and confinement at hard labor for 30 days was approved and duly executed. The applicant was confined at the U.S. Army Retraining Brigade, Fort Riley, Kanas. f. Two DA Form 4187 (Personnel Action) shows: * on 7 April 1981 his unit reported his duty status from present for duty to AWOL on or around 6 April 1981 * on 19 May 1981, his duty status changed from AWOL to dropped from rolls (DFR) g. The applicant underwent a mental evaluation on 17 June 1981 for separation and the examiner stated he met the mental capacity to understand and participate in the proceedings. h. He consulted with legal counsel on 17 June 1981 and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service. In his request, he acknowledged: * the maximum punishment * he was guilty of the charge against him or of a lesser included offense which authorized a punitive discharge * he did not desire further rehabilitation or a desire to perform further military service * if his discharge was approved, he may be discharged under conditions other than honorable and the effects of the discharge * he would be deprived of many or all Army benefits and that he may be ineligible for many or all benefits administered by the Veterans Administration and benefits as a veteran under both Federal and State laws i. Court martial charges were preferred against him on 18 June 1981. His DD Form 458 (Charge Sheet) indicates he was charged with one specification for being AWOL from 6 April 1981 to 6 June 1981. j. A Personnel Action was completed on the applicant on 22 June 1981 to change his duty status from DFR to present for duty. The applicant was apprehended by civil authorities, in Lumberton, NC on 6 June 1981. On 11 June 1981 he was released to military authorities. k. The applicant was discharged on 30 July 1981 under the provisions of AR 635-200 chapter 10 (For the Good of the Service – in Lieu of Court Martial). His service was characterized s under other than honorable conditions. His DD Form 214 shows he completed 2 years, 8 months, and 10 days of active service this period. He had lost time from 6 March 1979 to 8 April 1979, 12 June 1979 to 28 June 1979, and 6 April 1981 to 5 June 1981. 4. By law and regulation, periods of AWOL, confinement, and desertion are considered lost time which is not creditable service for pay, retirement, or veterans' benefits. The lost time is required to be listed on the DD Form 214 even if the periods of time lost were later made up. 5. 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. 6. By regulation, AR 601-210, (Regular Army and Reserve Enlistment Program) paragraph 3-8, the RE Code associated with this separation is RE-3B which applies to persons who have lost time during their last period of service; ineligible for enlistment unless a waiver is granted. 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 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. Based upon the short term of service prior to a pattern of misconduct, as well as a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to his separation, 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. 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. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable discharge) states 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 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. The member may have had frequent nonjudicial punishments but not for serious infractions. He may be a troublemaker, but his conduct is not so bad as to require discharge for cause or discharge under less than honorable conditions. When member’s service is characterized as general, except when discharge by reason for unsuitability, misconduct, or security, the specific basis for such separation will be included in the member’s military personnel record. c. Chapter 10 of that regulation provides that a Soldier 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. The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. 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. ABCMR Record of Proceedings (cont) AR20170003423 2 1