ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  2 July 2019

	DOCKET NUMBER:  AR20170007943


APPLICANT REQUESTS:  upgrade his under other than honorable conditions discharge to general under honorable conditions discharge or an honorable. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 293 (Application for the Review of 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.  Review of his service records shows:

	a.  He enlisted in the Regular Army on 6 August 1974.

	b.  On 13 September 1974, the applicant was reported absent without leave (AWOL), and remained so until on or about 20 December 1974.

	c.  On 7 January 1975, court-martial charges were preferred. DD Form 458 (Charge Sheet) shows one specification of absenting himself from his unit without authority from 13 September 1974 to 20 December 1974. 

	d.  On 10 January 1975, the applicant consulted with legal counsel.  He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him.  Subsequent to receiving legal counsel, he voluntarily requested discharge under provision of Army Regulation (AR) 635-200 (Personnel Separations), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request for discharge, he acknowledged his understanding that:

* by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge 
* he acknowledged he understood that if his discharge request was accepted he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he understood that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge
* he was advised he could submit any statements he desired in his own behalf; he submitted a questionnaire statement

	e.  The applicants questionnaire statement dated 10 January 1975 stated he made the statements voluntarily, knowingly and of his own free will.  He stated that he did not like the Army, he could not be rehabilitated, and he would accept undesirable discharge.

	f.  On 20 January 1975, the chain of command recommended approval of the applicant’s request for discharge.

   g.  On 30 January 1975, the separation authority approved the applicant's request for discharge, and directed that he be furnished an Undesirable Discharge Certificate.

	h.  On 13 February 1975, the applicant was discharged from the Army under the provisions of AR 635-200, chapter 10, conduct triable by court-martial with his service characterized as under other than honorable conditions.  His DD Form 214 (report of Separation from Active Duty) shows he completed 3 months of active service and he had 98 days of lost time due to AWOL.  It also shows he was not awarded or authorized any decorations, medals, badges, commendation, citations and campaign ribbons.

4.  By regulation, a member who has committed an offense 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

5.  The Board should consider the applicant's submissions in accordance with the published equity, injustice, or clemency determination guidance.


BOARD DISCUSSION:

After review of the application and all evidence, the Board determined relief is not warranted.  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.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the short term of honorable service completed prior to the lengthy AWOL offense which resulted in the applicant’s separation, as well as the failure to accept responsibility and show remorse for 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

:FDF	:CCA	:CMC	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) provides that 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) provides that 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 individuals military personnel record.  

	c.  Chapter 10 of that regulation provides, in pertinent part, an individual who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The request for discharge may be submitted at any time after court-martial charges are preferred against him, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial
to which the charges may be referred.

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)	 AR20170007943


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