ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 June 2019 DOCKET NUMBER: AR20170003878 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Article, What You Should Know About Chapter 13, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel): Separation for Unsatisfactory Performance 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 that he is requesting for the Board to change the status of his military record. He believes that he did not deserve this discharge for the crime that he committed. He was promised a reenlistment bonus and the Army never fulfilled their obligation to pay him the bonus. He went absent without leave (AWOL), which is the reason that the Army discharged him. While he was in the stockade, he wrote a letter and he was supposed to have been given a discharge under chapter 13. 3. The applicant provides an Article, What You Should Know about Chapter 13, AR 635-200: Separation for Unsatisfactory Performance, which shows the criteria for a Chapter 13, the commander’s actions, the procedure, and the applicant’s rights as well as the type of discharge issued. 4. A review of the applicant’s service records shows: a. He was inducted into the Army of the United States on 24 March 1970. b. He served in Korea form 8 September 1970 to 25 October 1971. a. c. He was released from active duty and transferred to the U.S. Army Reserve on 26 October 1971. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he completed 1 year, 7 months, and 3 days of active service. His characterization of service was honorable. It also shows that he was awarded or authorized: * National Defense Service Medal * Armed Forces Expeditionary Medal * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) d. Special Orders Number AR-129, dated 2 July 1973 show he was discharged from the Army National Guard on 21 June 1973 with honorable service. e. He enlisted on 22 June 1973 in the Regular Army. f. Court-martial charges were preferred against him on 2 May 1974. His DD Form 458 (Charge Sheet) indicates he was charged with two specifications of being AWOL from 9 October 1973 to 5 November 1973 and from 8 November 1973 to 22 April 1974. g. He consulted with legal counsel on 20 May 1974 and subsequently requested discharge under the provisions of AR 635-200, Chapter 10 (Discharge for the Good of the Service). He acknowledged: * maximum punishment * he is guilty of the charge(s) against him or of lesser included offense(s) * he did not desire further rehabilitation or further military service * he understood that if his request for discharge was accepted he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate * he may be deprived of many or all Army benefits administrated by the Veteran Administration * he may be deprived of his rights and benefits of a Veteran under both Federal and State laws * he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge h. Consistent with the chain of command recommendation, on 5 June 1974, the separation authority approved the applicant’s request for discharge for the good of the service. He would be discharged with an Undesirable Discharge Certificate and recued to the lowest enlisted grade. i. On 22 June 1974, he was discharged from active duty under the provision of AR 635-200, chapter 10. His DD Form 214 shows he completed 5 months and 2 days of active service with 194 days lost. It also shows he was awarded or authorized: a. * National Defense Service Medal * Armed Forces Expeditionary Medal * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) 5. By regulation, an individual whose conduct has rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. An Undesirable Discharge Certificate would normally be furnished individuals discharged for the good of the service. 6. In reaching it 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the short term of service completed prior to two lengthy AWOL offenses, 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 discharge, 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. 6/12/2019 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 (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 1-9 (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper 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 or service, grade and general aptitude. b. Paragraph 1-9 (General Discharge) is a separation from the Army under honorable conditions of an individual whose military records is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security. c. Chapter 10 of that regulation states an individual whose conduct has rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. An Undesirable Discharge Certificate would normally be furnished individuals discharged for the good of the service. 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 the 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 1. character of service granted solely on equity, 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 upgrade service characterization.