ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  3 June 2019

	DOCKET NUMBER:  AR20170005854


APPLICANT REQUESTS:  An upgrade of his under other than honorable conditions discharge for humanitarian purposes.

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 please upgrade his discharge for humanitarian purposes.

3.  A review of the applicant’s service records shows the following:

	a.  He was inducted into the Army of the United States on 6 March 1969.

	b.  On 19 March 1970, he was convicted by a special court-martial of one specification of being AWOL from 17 August 1969 to 24 February 1970.  He was sentenced to confinement at hard labor for three and one-half months and reduction to the pay grade of private/E-1.  On 3 April 1970, the convening authority approved the sentence.  The execution of that portion thereof adjudging confinement at hard labor in excess of one month is suspended for six months.

	c.  DA Form 20 (Enlisted Qualification Record) shows he had multiple time lost:

* absent without leave (AWOL) from 17 August 1969 until 25 February 1970
* confined on 26 February 1970 until 26 February 1970
* AWOL 2 March 1970 until 2 March 1970
* AWOL 1 July 1970 until 30 July 1970
* Dropped from rolls (DFR) on 31 July 1970 until returned to military control on 11 May 1971
* 14 May 1971 until no end date reflected

	d.  On 26 June 1970, his request for hardship discharge was disapproved.

	e.  On 12 May 1971, Special Orders Number 138 reflected that he was returned to military control from an AWOL status resulting in being dropped from the rolls.

	f.  On 14 May 1971, Special Court-Martial Order Number 552, vacated the previously suspended execution of the approved sentence to confinement at hard labor for three and one-half months.  The unexecuted portion of the sentence will be duly executed.

	g.  The applicant’s record is void of any separation documentation.  However, his record contains a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 2 July 1971, in the rank of private/E-1, under provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) chapter 10 (in lieu of trial by a court-martial) with an under other than honorable conditions characterization of service.  He had total active service of 10 months, and 28 days.  He was awarded the National Defense Service Medal.  He had a total of 558 days of lost time.

4.  By regulation (AR 635-200), chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.

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 there is insufficient evidence to grant relief.  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 record, 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) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	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)  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.  

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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170005854


3


1