ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 May 2019 DOCKET NUMBER: AR20170003676 APPLICANT REQUESTS: reconsideration of his earlier 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) 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 his discharge should change from under other than honorable conditions to honorable. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 25 May 1979. b. He received nonjudicial punishment under the provisions of Article 15 on: * 14 December 1979 for wrongful possession of marijuana * 21 May 1980 for drunk and disorderly * 30 January 1981 for disrespect to a noncommissioned officer, failure to be at his appointed place of duty, and for being absent without leave (AWOL) from on or about 0630 hours 9 January 1981 to on or about 1630 hours on 9 January 1981; his punishment include reduction to private/E-2. c. On 16 February 1981, a bar to reenlistment was imposed for a record of nonjudicial punishment, non-payment of just debts, and indicators of unsuitability. d. On 24 February 1981, court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice. His DD Form 458 (Charge Sheet), a. indicates he was charged with absenting himself from his place of duty on or about 6 February 1981 through 10 February 1981 and for escaping correctional custody while undergoing punishment at the correctional custody facility (CCF) on or about 6 February 1981. e. The applicant consulted with legal counsel on 11 March 1981 and subsequently requested discharge under the provisions of Army Regulation (RA) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 (in lieu of trial by court-martial). In his request, he acknowledged: * he understood 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 * he acknowledged that if his discharge was accepted, 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 law * he was advised he could submit any statements he desired in his own behalf; his election shows he chose not to submit a statement f. Consistent with the chain of command recommendations, on 24 March 1981, the separation authority approved the applicant’s request for discharge under the provisions of AR 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial. He was reduced to private/E-1 and issued an Under Other Than Honorable Discharge Certificate. g. On 9 April 1981, the applicant was discharged from active duty. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200 with his service characterized as under other than honorable conditions. He completed 1 year, 10 months, and 11 days of active military service with lost time from 6 February 1981 to 9 February 1981. His DD Form 214 also shows he was awarded or authorized: * Parachutist Badge * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Sharpshooter Marksmanship Qualification Badge with Grenade Bar 4. By regulation, a member who has committed an offense or offenses to which the punishment 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 1. 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 short term of service completed prior to a pattern of misconduct beginning, which included an escape from correction custoday, the Board concluded that the characterization of service received at the time of discharge 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. 5/23/2019 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. 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 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 that regulation provides, that a member who has committed an offense or offenses, the punishment for any of which, includes a bad conduct or dishonorable discharge my submit a request for discharged 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. 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 (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 1. 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.