ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 20 June 2019 DOCKET NUMBER: AR20170007929 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States) 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 would like an upgrade of his military discharge to receive medical benefits. He is currently in need of medical care. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army (RA) on 4 November 1974. b. He accepted nonjudicial punishment on/for: * 3 September 1975, for being Absent Without Leave (AWOL) on or about 18 August to 20 August 1975, his punishment included forfeiture of 50.00 for one month, 14 days restriction and 7 days extra duty * 10 May 1976 for wrongfully having is his possession 5 ounces or less or marijuana his punishment included reduction to E-2, forfeiture of $75.00 for one month, 14 days extra duty and 14 days restriction * 12 August 1976 for AWOL on or 16 July to 30 July 1976, his punishment forfeiture of $25.00 for two months and 45 days extra duty c. The applicant’s service record is void of the complete facts and circumstances surrounding his discharge. However, his DD 214 (Report of Separation from Active Duty) shows he was discharged on 26 April 1977 and issued an Under Other Than Honorable Conditions Discharge Certificate, Under the Provisions of AR 635-200, chapter 13. d. He completed 2 years, 4 months and 29 days of active service. He has lost time from 18 August to 19 August 1975, 16 July to 31 July 1976 and 27 January to 1 February 1977. He was awarded or authorized the Marksmanship Qualification Badge Rifle. 4. By regulation, action will be taken to separate a Soldier for unsuitability when it is clear he will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier and he meets retention medical standards (AR 40-501). 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. Based upon the short term of service completed prior to a pattern of misconduct, 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 his separation, 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 (AR) 635-200 Personnel Separations-Enlisted Personnel, in effect at the time, sets for the basic authority for separations 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. Where a member has served faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks, he may be furnished an honorable discharge. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). A member will not necessarily be denied an honorable discharge solely by reasons of a specific number of convictions by courts- martial or actions under Article 15 of the Uniform Code of Military Justice. It is the pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service to be awarded. 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 discharged by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. c. Paragraph 13-5a (1) states frequent incidents of a discreditable nature with civil or military authorities. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170007929 4 1