ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 May 2019 DOCKET NUMBER: AR20170005800 APPLICANT REQUESTS: an upgrade of his under other than honorable condition discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge or Dismissal) * NA Form 1306-1 (Request for Discharge Review) * Character letter from MAR, dated 11 June 1984 * Self-authored letter 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 wants to change his undesirable discharge to an honorable discharge. He was never offered the opportunity to return to his unit. He wrote a letter stating due to the state of Rhode Island’s incarceration for him being absent without leave (AWOL) he could not return to his base and he repeatedly showed a round trip ticket he had in his possession to return to his unit at Fort Hood, TX. He contacted X___ in 1984 and was told he could possibly have the undesirable status changed to an honorable status due to his service record. He spoke to a lawyer who stated his offense should have been forgive due to President Carter’s pardon or President Bush’s pardon, but he thought that was only for draft dodgers. 3. The applicant submitted a character reference letter from X___ who states he’s known the applicant most of his life and believes him to be a dedicated family man. X___ stated he had not known the applicant to be in any trouble since his discharge from the Army and he is familiar with the circumstances which led to the applicant’s discharge. He supports the applicant’s effort and recommends his request for the 1. correction of his record be favorably considered and he be granted an honorable discharge. 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 30 November 1972. b. On 4 June 1973, the applicant was reported absent without leave (AWOL), and on 4 July 1973, he was dropped from rolls. He returned to military control on 5 July 1973. c. On 12 September 1973, the applicant was reported AWOL, and he was dropped from the rolls. He was apprehended and returned to military control on 12 December 1973. d. On 21 December 1973, court martial charges were preferred against the applicant for two specifications of AWOL from 12 September 1973 to 12 December 1973 and 4 June 1973 to 5 July 1973. e. On 2 January 1974, following legal consultation, the applicant requested discharge for the good the service in accordance with chapter 10 of the Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel). He acknowledged: * he was making this request of his own free will and had not been subject to any coercion whatsoever by any person * by submitting this request for discharge, he understood the elements of the offense charged and he is guilty of the charge against him * he stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service * as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, and he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law * he understood that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge f. On 24 January 1974, the separation authority approved the discharge action under the provisions of Chapter 10, AR 635-200 chapter 10, for the good of the service and directed an Undesirable Discharge Certificate. g. The applicant was discharged on 14 February 1974. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of chapter 10 (in lieu of trial by court-martial) of AR 635-200, his service was characterized as a. under other than honorable conditions and he was reduced to the lowest enlisted rank. He completed 10 months and 13 days of active service with lost time of 122 days. It also shows he was awarded or authorized: * National Defense Service Medal, * Expert Marksmanship Qualification Badge Rifle (M-16), * Expert Grenade Badge. 5. By regulation (AR 735-200), chapter 10 provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court- martial charges were preferred. An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service. 6. The Board should consider the applicant's submissions in accordance with the published equity, injustice, or clemency determination guidance BOARD DISCUSSION: After review of the application and all supporting documetns, 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, 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. 1535874 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, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 1-9e (General Discharge) A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of that regulation states a Soldier 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. A discharge under other than honorable conditions normally is appropriate for a Soldier 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 1. 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.