ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 4 October 2019 DOCKET NUMBER: AR20170004896 APPLICANT REQUESTS: reconsideration for an upgrade of his undesirable discharge to honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * NA Form 13038 (Certification of Military Service) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150010490 on 19 April 2016. 2. The applicant states he had a permanent profile which was not honored. That’s why he went absent without leave (AWOL). He was told after 5 years his discharge would turn honorable. At the time he was in the stockade and not being paid. 3. The applicant provides a copy of his National Archives and Records Administration (NA) Form 13038. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 3 August 1970. b. He accepted/received non-judicial punishment (NJP) for absenting himself from his unit on or about 8 November 1970 to 16 November 1970. His punishment consisted of reduction to the grade of PVT/E-1. c. His DA Form 20 (Enlisted Qualification Record) shows he was AWOL from 29 January 1971 to 11 March 1971 and 15 March 1971 to 30 April 1971. d. On 15 May 1971, court-martial charges were preferred against him. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of absenting himself from his organization from 29 January 1971 to 11 March 1971 and 15 March 1971 to 30 April 1971. e. He consulted with legal counsel on 28 May 1971 and subsequently requested a discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel), Chapter 10, for the good of the service. He acknowledged: * he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate * if issued and Undesirable Discharge he may be deprived of many or all Army benefits * he may be ineligible for many or all benefits administered by the Veterans’ Administration * he may be deprived of his rights and benefits as a veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life f. Consistent with the chain of command recommendations, on 28 June 1971, 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 directed he be discharged with an undesirable discharge. g. On 2 July 1971, he was discharged in accordance with AR 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial. His record is void of his DD Form 214. Instead of a DD 214, the applicant provided a NA Form 13038 which shows his service from 3 August 1970 to 2 July 1971 with an undesirable discharge. h. The Army Discharge Review Board denied his request for an upgrade of his discharge on 29 March 1978 and 23 July 1980. 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. 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 the short term of honorable service completed prior to lengthy periods of AWOL, 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 to amend the decision of the ABCMR set forth in Docket Number AR20150010490 on 19 April 2016. 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 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 of 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 discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security. c. Paragraph 1-9f (Undesirable Discharge) states and undesirable discharge is an administrative separation from the Service under conditions other than honorable. It may be issued for unfitness, misconduct, homosexuality, or for security reasons. d. Chapter 10 of this regulation states 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. 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 (BCMNRs) 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 court-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 on the basis of 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. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170004896 4 1