ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  24 June 2019

	DOCKET NUMBER:  AR20170007939


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 the Review of Discharge from the Armed Forces of the United States)
* Letter from Department of Oklahoma, American Legion, dated 16 April 2017
* 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 would like his discharge for the good of the service changed to an honorable discharge.

3.  The applicant provides a statement of support from RG at the Department of Oklahoma, American Legion, dated 16 April 2017.  It states, the applicant and a fellow Soldier, stationed at Fort Riley, elected to go squirrel hunting several miles away and depended on hitchhiking to get there since they did not have personal transportation.  They made it to the fellow Soldier’s farm in Oklahoma with no problem; however, returning proved to be challenging and they were not able to return in time for duty.  Both Soldiers were summoned by their commander and were told to pack their bags because he was sending them both to Leavenworth.  The Soldiers elected to leave Fort Riley on their own because they did not want to be incarcerated.  As young Soldiers not understanding there is a process before being sent immediately to Leavenworth, the commander’s threat had a major impact on their departure.  The commander may also have felt compelled to hold them accountable for their absence during the Vietnam era; however, the situation could have been avoided, and the request for an upgrade to an honorable discharge is supported.  He is a man of character and good will.

4.  A review of the applicant’s service record shows:

a. He enlisted in the Regular Army on 15 January 1971.

b. He received nonjudicial punishment under Article 15 on 17 December 1971 for 
being absent without leave (AWOL) from 6 December 1971 to 11 December 1971.  His punishment included reduction to private first class/E-3, suspended for a period of 3 months.

   c.  On 30 June 1972, court-martial charges were preferred on the applicant for one specification of being AWOL from 12 May 1972 to 29 June 1972.

	d.  On 3 July 1972, after consulting with legal counsel, 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:

* the implications attached to his request
* if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* 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

	g.  On 1 August 1972, consistent with the chain of command recommendations, the separation approval authority approved the applicant’s request for discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200.  He would be issued an Undesirable Discharge Certificate and reduced to the lowest enlisted pay grade.

	h.  On 1 August 1972, he was discharged from active duty with an under other than honorable conditions characterization of service under the provisions of chapter 10, Army Regulation (AR) 635-200 for the good of the service.  His DD Form 214 shows he completed 1 year, 4 months, and 22 days of active service with 54 days lost time.  It also shows he was awarded or authorized the National Defense Service Medal.

5.  By regulation, 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 Undesirable Discharge Certificate 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the relatively short term of service completed prior to multiple AWOL offenses and a lack of mitigating reasons given for the AWOLs, 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 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 states 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 Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service.

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.  

ABCMR Record of Proceedings (cont)	 AR20170007939


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