ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 June 2019 DOCKET NUMBER: AR20170007894 APPLICANT REQUESTS: 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 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 was a good Soldier but faced family problems. He did not have sufficient pay from the military to support his family. He decided to go absent without leave (AWOL) a few times to work and earn money to sustain his family. 3. The applicant’s service records shows: a. He enlisted in the Regular Army on 10 October 1969. b. On 5 June 1970, court-martial charges were preferred. His DD Form 458 (Charge Sheet) indicates he was charged with two specifications of being absent without leave (AWOL) from 6 January 1970 to 6 May 1970 and from 15 May 1970 to 21 May 1970. c. On 11 May 1971, he was charged with two additional specifications of AWOL. He was AWOL from 8 June 1970 to 21 August 1970 and from 21 September 1970 to 6 April 1971. Upon return to military control on 6 April 1971, he was placed in pre-trial confinement. d. On 6 April 1971, he consulted with legal counsel and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 for the good of the service. In his request, he acknowledged: * maximum punishment * he understood if his discharge was accepted he could be separated with an under other than honorable conditions discharge and furnished an Undesirable Discharge Certificate * he would be deprived of many or all Army benefits and that he may be ineligible for benefits by the VA and benefits of a Veteran under Federal and State law * he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge * he may submit statements in his behalf. His election shows he chose not to submit any statements. f. On 16 June 1971, consistent with the chain of command recommendations, the separation authority approved the applicant’s request for discharge in accordance with AR 635-200, Chapter 10. He was reduced to the lowest enlisted grade of private/(E-1) and issued an Undesirable Discharge Certificate. g. On 24 June 1971, he was discharged from active duty under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 for the good of the service. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 7 months and 5 days of active service with 399 days of lost time. It also shows he was awarded the National Defense Service Medal. 4. By regulation, an individual who has committed an offense or offenses to which the punishment includes a punitive discharge may submit a request for discharge 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade request, the Board determined that relief was not warranted. Based upon the short term of service completed prior to multiple lengthy AWOL offenses which led to the applicant’s separation, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to discharge, the Board concluded that the characterization of service received at the time of separation 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 (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. c. Chapter 10 of this regulation provides that a member who has committed an offense of offenses, the punishment for any of which, under the Uniform Code of Military Justice and Manual for Courts-Martial, includes a bad conduct or dishonorable discharge may submit a request for the good of the service. An Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. If warranted, however, the discharge authority may direct an honorable or general 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 (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. ABCMR Record of Proceedings (cont) AR20170007894 3 1