ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  19 June 2019

	DOCKET NUMBER:  AR20170008463


APPLICANT REQUESTS:  upgrade of his under other than honorable conditions discharge to a general under honorable conditions discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge)
* 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 he was sent home from Vietnam on a hardship case to locate and retain custody of his son.  He located and obtained partial custody of his son in 1975.  During which he lost track of time and he regrets not returning to the Army.  He served with Company B, 1st Battalion, 8th Brigade, 1st Cavalry Division in Vietnam.  He has been a good father, husband, and citizen. 

3.  A review of the applicant’s service records shows:

	a.  He was inducted into the Army of the United States on 20 August 1968.

	b.  He served in Vietnam from 5 February 1969 to 17 September 1969.

	c.  DD Form 458 (Charge Sheet), on 20 May 1976 charges were preferred against the applicant for one specification of without authority, absented himself from his organization for the period of 18 September 1969 to until 17 May 1976.

	d.  On 20 May 1976, he consulted with legal counsel who advised the applicant of the charge against him and his rights regarding said charge for absent without leave.  
   e.  On 25 May 1976, the applicant requested discharge for the good of the service under the provisions of chapter 10 Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), in lieu of trial by court-martial.  He acknowledge:

* he was guilty of the charge(s) against him or of lesser included offense(s)
* he did not desire rehabilitation or desire to perform further military service
* he could be issued a bad conduct or dishonorable discharge certificate
* he was making the request of his own free will and was not subjected to coercion whatsoever by any person
* if his request for discharge was accepted he would normally be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* he may be deprived of many or all Army benefits, he will be ineligible for many or all benefits administered by the Veteran’s Administration and he may be deprived of benefits as a veteran under both Federal and State law
* he may expect to encounter substantial prejudice in civilian life
* an upgrade of his discharge was not automatic and that he may apply with the Army Discharge Review Board or Army Board for Corrections of Military Records

   f.  On 27 May 1976, the applicant submitted a statement in his own behalf that stated he had been drafted and he did not like the Army.  He wanted to get out of the Army because he was married with a family and had a good job.  If he were returned to duty, he would try to get a discharge.  He understood that this request will cause him to lose his benefits including; headstone marker, loans and burial flag.  He also understood what an undesirable discharge was and that he would accept it.

   g.  On 9 June 1976, consistent with the chain of command recommendation the convening authority approved the applicant’s discharge for the good of the service with an undesirable discharge certificate and to be reduced to the lowest enlisted grade.

   h.  Special Order Number 166, dated 14 June 1976, reduced the applicant to private/E-1 with the effective date of 9 June 1976.

   i.  He was discharged from active duty on 25 June 1976 with an under other than honorable conditions characterization of service.  His DD Form 214 shows he completed 1 year, 2 months, and 3 days of active service with 2,433 lost days.  It also shows that he was awarded or authorized:

* Vietnam Service Medal
* Vietnam Campaign Medal
* Combat Infantryman Badge
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar

4.  By regulation AR 635-200, an individual whose conduct has rendered him triable by court-martial under circumstances which could lead to 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. 

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.  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 length AWOL offense which led to the applicant’s 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

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), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 stated an individual whose conduct has rendered him triable by court-martial under circumstances which could lead to 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.  An undesirable discharge certificate will normally be furnished an individual who is discharged for the good of the service.  

	b.  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.  Where a member has service faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks he may be furnished an honorable discharge.

	c.  Paragraph 1-9e (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 discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security the specific basis for such separation will be included in the individual’s military personnel record.

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 the 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, 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 upgrade service characterization.  


ABCMR Record of Proceedings (cont)	 AR20170008463


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