ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 July 2019 DOCKET NUMBER: AR20170008195 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 that during the time he was discharged he was a young man in foreign lands doing his job and under pressure that he believes, due to his lack of knowledge and youth, caused him to unfairly receive an under other than honorable conditions discharge. He believes anyone that served in the military for any amount of time should be considered for an honorable discharge. When taking his oath, he tried and gave his all in the years he served in the Army. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 3 August 1971. He served in Germany from 27 January 1972 to 22 July 1974. b. He received nonjudicial punishment under Article 15 on: * 3 November 1971, at Fort Jackson, SC, for being absent without leave (AWOL) from 1 to 2 November 1971, he was ordered to forfeit $30 and perform 14 days of extra duty as punishment * 30 November 1971, at Fort Jackson, SC, for violating a lawful order, he was ordered to forfeit $35 for one month as punishment * 7 January 1972, at Fort Lewis, WA, for being AWOL from 7 to 17 January 1972, he was ordered reduced to E-1 and forfeited $50 pay * * 18 October 1972, in Germany, for being AWOL from 4 to 10 October 1972, he was ordered to forfeit $50 for two months, given 30 days extra duty, and reduced to the grade of E-3 (suspended) as punishment * 22 May 1973, in Germany, for being AWOL from 13 to 14 May 1972, abandoning his post, dereliction of duties, and violating a lawful order, he was ordered to forfeit $100 per month for 2 months, given 30 days extra duty, and reduced to the grade of E-1, suspended for 4 months, as punishment. c. On 31 July 1973, he was convicted on 6 specifications by a summary court martial for failing to go to his appointed place of duty. The court sentenced him to reduction to the grade of private/E-2 and forfeiture $228 pay per month for one month. The sentence was adjudged and approved on 22 August 1973 and duly executed. d. On 25 March 1974, court-martial charges were preferred. His DD Form 458 (Charge Sheet) indicates he was charged with: * two specifications of disrespect to a superior noncommissioned officer * one specification of failure to obey a lawful order e. On 22 April 1974, he consulted with legal counsel, and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, (Discharge for the Good of the Service). He acknowledged: * maximum punishment * if his request was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate * he may ineligible for many or all benefits administered by the Veterans Administration, and he may be deprived of rights and benefits as a Veteran under both Federal and State laws * he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge j. On 25 April 1974, consistent with the chain of command recommendations, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, AR 635-200. He directed a discharge with an Undesirable Discharge Certificate. k. On 13 May 1974, he was discharged from active duty under the provisions of chapter 10, AR 635-200 with an under other than honorable conditions characterization of service (undesirable discharge). His DD Form 214 (Report of Separation from Active Duty) shows he completed 2 years, 9 months, and 11 days of active service. It also shows he was awarded or authorized the National Defense Service Medal. j. 4. 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 normally is appropriate for a member who is discharged for the good of the service, 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 reviewing the application and all supporting documents, to include the DoD guidance for consideration of discharge upgrade requests, the Board determined that relief was not warranted. The Board considered his statement and frequency and nature of his misconduct. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based upon the term of honorable service completed prior to a pattern of misconduct, as well as a lack of character evidence submitted by the applicant to show that he had 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. 7/18/2019 X CHAIRPERSON Signed by: 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.