ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 July 2019 DOCKET NUMBER: AR20170004245 APPLICANT REQUESTS: upgrade of his other than honorable conditions discharge to general, under honorable conditions. 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 believes he should have a general under honorable conditions. He served over 3 years. He went on leave for the birth of his first child and stayed longer than he was authorized. Once he got back to his unit, he started having problems with his wife so he went AWOL (absent without leave) again. He was trying to save his marriage. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 17 July 1968. b. On 6 April 1969, he was honorably discharged from active duty for immediate reenlistment. His DD Form 214 shows he completed, 9 months and 20 days of active service. c. He reenlisted in the Regular Army on 7 April 1969. d. He accepted nonjudicial punishment under Article 15 on/for: * 5 June 1969, for being absent without leave (AWOL) from 23 May to 4 June 1969 * 19 February 1969 for disrespecting a non-commissioned officer e. On 13 November 1969, the applicant was convicted by a special court-martial of one specification of being AWOL from 4 July 1969 to 3 October 1969. The court sentenced him to reduction to private/E-2 and restriction. f. He accepted nonjudicial punishment under Article 15 as follows: * On 23 April 1970 for breaking restriction * On 24 August 1970 for disobeying a lawful order * On 7 November 1970 for being AWOL from 4 to 5 November 1970 * On 7 December 1970 for being AWOL on 30 November1970 * On 16 December 1970 for failure to be at your appointed place of duty g. On 17 June 1971, the applicant was convicted by a special court-martial of one specification of being AWOL from 17 December 1970 to 2 April 1971. The court sentenced him to reduction to E-1, confinement at hard labor for 4 months, and forfeiture of $40.00 per month for 4 months. h. On 9 June 1972, court martial charges were preferred against the applicant. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of failure to go at the prescribed time to his appointed place of duty and one specification of disobeying a lawful order. i. On 19 June 1972, he consulted with legal counsel. Counsel advised him of the contemplated trial by court-martial for offenses punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request for discharge, he acknowledged: * he was making the request of his own free will and he had not been subjected to any coercion * by submitting this request he was acknowledging he was guilty of the charge(s) against him or a lesser included offense * he understood that if the discharge request was accepted he could be furnished an Undesirable Discharge Certificate * he understood if such a discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * he could be deprived of his rights and benefits as a veteran under both Federal and State laws j. Consistent with the chain of command recommendation, on 23 June 1972, the separation approval authority approved the applicant’s request for discharge under the provisions of AR 635-200, chapter 10 and directed his service be characterized under other than honorable conditions and reduced to the lowest enlisted grade of E-1. k. His DD Form 214 (Armed Forces of the United States Report Of Transfer) reflects that on 14 July 1972, he was discharged from active duty under the provisions of AR 635-200, Chapter 10 (In Lieu of Trial by Court-Martial) with an under other than honorable conditions characterization of service. He had 2 years 4 months and 2 days of active duty service. He had 294 days of lost time. 4. By regulation (AR 635-200), 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 under other than honorable conditions discharge 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. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. 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. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon a short term of honorable service completed prior to a pattern of misconduct, as well as the failure to accept responsibility and show remorse for 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. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, provides 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. c. Chapter 10 of that regulation states 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 Under Other Than Honorable Discharge Certificate normally is appropriate for a member who is 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170004245 5 1