ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  11 June 2019

	DOCKET NUMBER:  AR20170007984


APPLICANT REQUESTS: upgrade of his under other than honorable conditions 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 young and immature.  He did not think out his decisions.  Since his discharge, he has missed out on education and medical benefits.  He would very much like to apply for medical benefits.  He resigned for the benefit of the service.  There was no violence or drugs involved.  

3.  Review of the applicant's service records shows: 

	a.  The applicant was born in October 1952 and enlisted in the Regular Army on 30 January 1970 at 17 years and 4 months of age.

	b.  He served in Germany from 25 August 1970 to 1 March 1972.  He was assigned to the 3rd Armored Division. 

	c.  He accepted nonjudicial punishment (NJP) under Article 15 on 16 Jul 1971 for failing to obey a lawful order.  His punishment included a suspended reduction from E-4 to E-3. 

	d.  On 8 October 1971, he again accepted NJP for operating a vehicle without a valid license.  

	e.  On leaving Germany, he was assigned to Fort Carson, CO.  

	f.  On 14 June 1972, he was reported in an absent without leave (AWOL) status and on 25 July 1972, he was dropped from the rolls as a deserter.  He was apprehended by civil authorities on 20 February 1973.  

	g.  The complete facts and circumstances concerning the applicant's discharge are not available for review with this case.  However, his records contain:

		(1)  Special Orders Number 266, issued by Headquarters, 4th Infantry Division (Mechanized), Fort Carson on 22 September 1972, discharged the applicant under the provisions of Army Regulation (AR) 635-200 ((Personnel Separations – Enlisted Personnel)), for the good of the service, effective 22 September 1972 with an Undesirable Discharge Certificate. 

		(2)  His DD Form 214 showing he was discharged on 22 September 1972 under the provisions of AR 635-202, separation program number (SPN) 246 (chapter 10).  His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate.  This form also shows he completed 2 years, 6 months, and 12 days of active service and he had lost time from 14 June 1972 to 25 July 1972. 

4.  By regulation (AR 635-200), discharges under the provision of AR 635-200, chapter 10 (Discharge for the Good of the Service) are voluntary requests for discharge in lieu of trial by court-martial.

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.  Based upon the length of the AWOL, which only ended by apprehension by civilian authorities, as well as a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to his separation, the Board concluded that the characterization of service received at the time of discharge 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) superseded AR 635-206 and sets forth the basic policy for the separation of enlisted personnel.

	a.  An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  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.  

	c.  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.  Although an honorable or general discharge is authorized, an undesirable discharge was considered appropriate at the time the applicant was discharged.  When an individual is discharged in lieu of trial by court-martial, the entry on the DD Form 214 would be "AR 635-200, SPD [separation program designator] 246."

3.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The ABCMR decides cases on the evidence of record.  It is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

4.  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)	 AR20170007984


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