ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 October 2019 DOCKET NUMBER: AR20170007932 APPLICANT REQUESTS: In effect, an upgrade of his under conditions other than honorable discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the 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 (ABCMR) 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 unjustly discharged. His alleged offense did not warrant total separation from the military. Punishment was to extreme. He would like his status changed to honorable, due to the fact, he had to plea bargain and sign papers under total duress. Since this time, he has been an upstanding citizen of these United States of America. For the past 11 years, he has been a truck driver moving commerce for the people of the US. 3. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 31 December 1970. b. On 12 January 1972, he accepted non-judicial punishment for without proper authority absent himself from his unit from 27 December 1971 until 10 January 1972. c. Court martial charges were preferred on 13 April 1972. DD Form 458 (Charge Sheet) indicates he was charged with: * one specification of attempting to escape from apprehension by walking out the front door * three specifications of disobeying a lawful command to produce his identification card and to be at ease and calm down willfully disobey the same * two specifications of disorderly conduct in command d. On 26 April 1972, he consulted with legal counsel and subsequently requested discharge under the provisions (UP) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). He acknowledged: * the maximum punishment if found guilty * if his request was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate * if approved, he would be deprived of many or all Army benefits * 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 may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge e. On 2 May 1972 his immediate commander recommended approval for separation UP of AR 635-200, chapter 10. f. On 22 May 1972, consistent with the chain of command's recommendation, the separation authority approved the applicant’s request for discharge for the good of the service and ordered an Undesirable Discharge Certificate be furnished. He would be reduced to the lowest enlisted pay grade. g. On 1 June 1972, he was discharged UP of AR 635-200, Chapter 10 under conditions other than honorable in the rank of private/E-1. He completed 1 year, 5 months and 1 day of active service. 4. On 27 November 1984, the applicant was notified by The Army Discharge Review Board determined the applicant was properly discharged. The request for a change in the type and nature of his discharge was denied. 5. By regulation, AR 635-200 chapter 10, in effect at the time, sets forth the basic authority for the separation of enlisted personnel an individual 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. An under other than honorable conditions discharge will normally be furnished an individual who is discharged for the good of the service. 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, the Board determined partial relief was warranted. Board members noted that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of trial by court-martial. He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. Board members felt that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. His discharge accurately reflects his overall record of service. Based on his record of indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also rendered his service unsatisfactory. His service did not rise to the level of honorable; however, the Board considered his petition and his service record IAW published equity, injustice, or clemency determination guidance. Based on that guidance, Board members voted to grant partial relief to General, Under Honorable Conditions. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X: GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by re-issuing the applicant's DD Form 214 for the period ending 1 June 1972 to show the character of service as "Under Honorable Conditions (General)." 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge to Honorable. 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 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) sets forth the basic authority for the separation of enlisted personnel. 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. 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) AR20170007932 4 1