ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 June 2019 DOCKET NUMBER: AR20170009431 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to a general discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States). * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 spent two weeks over his leave time at home. He was an 18 year old kid that made mistakes and he had alcohol issues and as a result he was given jail time. Once he was released, he immediately reported back to his unit and was informed he would be discharged under other than honorable conditions. He has lived with this mistake for over 35 years and feels the punishment does not fit the crime. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 25 May 1976. b. Court martial charges were preferred against him on 9 August 1977. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of being absent from his organization without authority from 10 February 1977 until 31 July 1977. c. He consulted with legal counsel on 5 August 1977 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: * he is guilty of the charge against him or a lesser include offense. * he did not desire further rehabilitation * maximum punishment * he understood that if his request for discharge was accepted he could be discharged under other than honorable conditions * he would be deprived of may or all Army benefits administrated by the Veterans Administration * he may be deprived of his rights and benefits of a Veteran under both Federal and State laws * he may expect to encounter substantial prejudice in civilian life because of an other than honorable conditions discharge d. Consistent with the chain of command recommendation on 9 August 1977, the separation approval authority approved the applicant’s request for discharge for the good of the service. He would be discharged with an under other than honorable conditions discharge and reduced to the lowest enlisted pay grade. e. On 26 August 1977, he was discharged from active duty under the provisions of AR 635-200, chapter 10. His DD 214 reflects completion of 9 months and 2 days of active service. It also shows he has 170 days of lost time. 4. By regulation, a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. 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 on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the short term of service prior to the lengthy AWOL offense, as well as a lack of character evidence submitted by the applicant to show that 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), 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 or 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) 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. c. Paragraph 1-9f (Undesirable Discharge) states an undesirable discharge is an administrative separation from the Service under conditions other than honorable. It may be issued for unfitness, misconduct, homosexuality, or for security reasons. d. 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. 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 (BCMNRs) 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 court-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 on the basis of 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. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. ABCMR Record of Proceedings (cont) AR20170009431 0 3 1