ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 June 2019 DOCKET NUMBER: AR20170008493 APPLICANT REQUESTS: an 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) 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 is currently homeless and due to his type of discharge, he cannot receive benefits. He requests an upgrade of his discharge in order to qualify for benefits. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army (RA) on 10 February 1977. b. On 27 July 1978, he accepted nonjudicial punishment for being absent without leave from 14 July 1978 to 17 July 1978. He was reduced to the grade of E2 (suspended), forfeiture of pay $103 for one month (suspended), 10 days restriction, and 10 days extra duty. c. On 24 August 1978, he accepted nonjudicial punishment for missing movement. He received 14 days extra duty and 14 days restriction. d. On 15 September 1978, he accepted nonjudicial punishment for breaking restriction and for failure to go to an appointed place of duty on 3 separate occasions. He was reduced to the grade of E1 (suspended) and 3 days in correctional custody. a. e. On 17 October 1978, he accepted nonjudicial punishment for being absent without leave from 3 October 1978 to 14 October 1978. He received forfeiture of pay $209 for two months, 45 days restriction and 45 days extra duty. f. Court-martial charges were preferred on 6 February 1979. His DA Form 458 (Charge Sheet) indicates he was charged with one specification of being absent without leave from 23 November 1978 to 23 January 1979. g. He consulted with legal counsel on 7 February 1979 and subsequently requested discharge under provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 (Discharge for the Good of the Service), in effect at the time. He acknowledged: * he was guilty of the charge against him or of a lesser included offense which also authorizes the imposition of a bad conduct or dishonorable discharge * he did not desire further rehabilitation or desire to perform further military service * 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 can expect to encounter substantial prejudice in civilian life because of the Other Than Honorable Discharge h. Consistent with the chain of command’s recommendation, on 16 February 1979, the separation authority approved the applicant’s request for separation under the provisions of chapter 10, AR 635-200, Chapter 10 (Discharge for the Good of the Service), in effect at the time. i. On 28 February 1979, he was discharged. His DD Form 214 shows he was discharged with an other than honorable conditions characterization of service. He completed 1 year, 10 months, and 3 days of active service with 96 days lost. It also shows he was awarded or authorized the Marksmanship Qualification Badge with Rifle Bar. 4. The applicant applied to the Army Discharge Review Board for an upgrade of his discharge, which was denied by the board on 7 April 1981. 5. By regulation, a member who has committed an offense or offenses, which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. A discharge under other than honorable conditions normally is appropriate for a soldier discharged for the good of the service. 1. 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 review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the relatively short term of service completed prior to a pattern of misconduct, as well as the lack of character evidence submitted by the applicant to show that he has learned and grown from the events which led to his discharge, 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. 0 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, provides for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable Discharge) is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-13b (General Discharge) states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of this regulation provides procedures for separating soldiers who have committed an offense or offenses, UCMJ includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. An under other than honorable discharge certificate is normally appropriate for a member 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.