ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 June 2019 DOCKET NUMBER: AR20170007778 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to a general discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 it was reported that he participated in black market sales and he did not. It was also reported he was absent without leave (AWOL) on 17 August and from 25 to 26 August 1979, for 5 days. The AWOL time is correct. He was a good Soldier. Other than for the AWOL periods, he believes he deserves a general discharge. His first petition for a discharge upgrade was within 5 years. He is appealing that decision because he is getting older and feels he should have his discharge corrected. 3. Review of the applicant’s record shows: a. He enlisted in the Regular Army on 2 February 1977. He was promoted to pay grade E-4 on 10 January 1979. He served in Korea from 12 January to 29 October 1979. b. He was reported AWOL from 25 to 26 August 1979. c. A DD Form 458 (Charge Sheet), dated 30 August 1979, shows court-martial charges were preferred against the applicant for one specification of purchasing items through black market activities and one specification of being AWOL from 17 to 20 August 1979. d. On 2 October 1979, after consulting with legal counsel, he was advised of the basis of contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice. Following this consult, he requested a discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel). He acknowledged: * maximum punishment * if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate * he may be deprived of many or all Army benefits * 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 g. On 2 October 1979, the applicant’s chain of command recommended approval of the applicant’s request and the issuance of an Under Other Than Honorable Conditions Discharge Certificate. h. On 4 October 1979, the separation authority approval the applicant’s discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduction to the lowest enlisted grade. i. Accordingly, he was discharged from active duty on 31 October 1979, under the provisions of chapter 10 of AR 635-200 with an under other than honorable conditions characterization of service. His DD Form 214 shows he completed 2 years, 8 months, and 23 days of active service and 5 days of time lost. This form also shows he was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar. 4. On 2 January 1983, the Army Discharge Review Board determined that he was properly discharged and denied his petition for a change in the type and nature of his discharge. 5. By regulation (AR 635-200), an individual who has committed an offense or offenses, the punishment for which, includes an undesirable discharge, may submit a request for discharge in lieu of trial by court-martial. 6. 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the large dollar amount involved in the blackmarket misconduct and the lack of character evidence submitted by the applicant to show that he has learned and grown from the those events, 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. 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, set forth the basic authority for the separation of enlisted personnel. The regulation stated in: a. Paragraph 3-7a (Honorable Discharge) – an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b (General Discharge) – a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 – an individual who has committed an offense or offenses, the punishment for which included an undesirable discharge, could submit a request for discharge for the good of the service. A discharge under other than honorable conditions normally was appropriate for a Soldier who was discharged for the good of the service; however, the separation authority could direct a General Discharge Certificate, if such was merited by the Soldier’s overall record during the current enlistment. 2. 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 (BCMRs) 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. ABCMR Record of Proceedings (cont) AR20170007778 4 1