ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  8 July 2019

	DOCKET NUMBER:  AR20170003440


APPLICANT REQUESTS:  an upgrade of his under other than honorable condition discharge to honorable.

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 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 absent without leave because of a family emergency.  He was told his discharge would change in six months.  He feels as though he served honorably, fought for his country and deserves an upgrade.

3.  The applicant’s service records shows:

	a.  He enlisted in the Regular Army on 9 February 1968.  He served in Vietnam from 1 December 1968 to 28 November 1969.  

	b.  He was honorably discharged on 7 November 1969 for an immediate reenlistment.  He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that credited him with 1 year, 8 months, and 29 days of active service.  

	c.  He reenlisted on 8 November 1969.  He was reassigned to Fort Benning, GA.  He received the following nonjudicial punishment (Article 15):

* 22 November 1969, failing to go at the time prescribed to his appointed place of duty
* 15 April 1970, absenting himself from his appointed place of duty without authority, departing his guard post before being regularly relieved, and absenting himself from his unit without authority
* 1 May 1970, absenting himself from his appointed place of duty without authority, two counts of failing to be at his appointed place of duty without authority, and failing to go at the time prescribed to his appointed place of duty; his punishment consisted, in part, of reduction to private first class/E-3
* 14 November 1970, two counts of dereliction in performance of his extra duties
* 24 March 1971, being AWOL (absent without leave)
* 14 June 1971 being  AWOL from 19 May 1971 to 7 June 1971

	d.  The applicant was also twice convicted by a court-martial: 

* at Fort Carson, CO, Special Court-Martial for two specifications of being AWOL from 20 June 1970 to 3 July 1970 and 20 July 1970 to 30 September 1970; the court sentenced him in part, of reduction to private/E-1
* at Fort Benning, GA, Special Court-Martial on 29 March 1971 for one specification of AWOL from 5 January 1971 to 10 March 1971; the court sentenced him in part to reduction to private/E-1

	e.  The applicant’s service record is void of the charge sheet, his request for discharge, chain of command recommendations, separation authority’s action, and discharge orders.  However, his record contain a DD Form 214 that shows he was discharged on 10 December 1971 under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, in lieu of trail by court-martial.  He was discharged as a private/E-1 and his service characterized as under other than honorable conditions.  He completed 1 year, 3 months, and 27 days of active service with 275 days of lost time.  It also shows he was awarded or authorized:

* Army Commendation Medal
* Vietnam Service Medal
* Vietnam Campaign Medal with 60 device
* two overseas service bars

4.  By regulation, a member who committed an offense or offenses the punishment for which includes a bad conduct discharge 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.

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.

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 length of  the AWOL offense which resulted in the applicant’s separation and a lack of mitigating reasons provided by the applicant for the AWOL, the Board concluded there was insufficient evidence to show that an error or injustice was present which would warrant making a change to the characterization of service.

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 (Personnel Separations – Enlisted Personnel) 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 or 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.  When a member's service is characterized as general, except when discharged by reason of misconduct, unfitness, or unsuitability.

	c.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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)	 AR20170003440


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