ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 October 2019 DOCKET NUMBER: AR20170009876 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States). 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 (ABCMR) 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. A review of his service records show: a. He enlisted in the Regular Army on 23 June 1971. He was honorably discharged on 9 November 1972 for immediate reenlistment. His DD Form 214 for this period of service shows he completed 1 year, 4 months, and 17 days of active service. He reenlisted in the RA on 10 November 1972. b. He served in Korea from 22 October 1971 to 10 December 1972. c. He accepted nonjudicial punishment on/for: * 1 May 1972, having knowledge of a lawful order issued by the Commanding General to stay not stay off Camp Casey Korea without an overnight pass. His punishment consisted of 14 days of extra duty and forfeiture of $50.00 for one month * 4 May 1972, having knowledge of a lawful order issued by the Commanding General to stay not stay off Camp Casey Korea without an overnight pass. His punishment consisted of 14 days of extra duty/restriction, forfeiture of $80.00 for one month, and reduction to private/PV2 (suspended for a period of ninety (90) days. * 25 May 1973, disobeying a lawful order. His punishment consisted of reduction in grade to private first class/E-3, forfeiture of $50.00, and 14 days extra duty. Applicant appealed the punishment on 29 May 1973. The Appellate denied the appeal on 20 June 1973 * 25 September 1974, unlawfully entering an off limit area. His punishment consisted of forfeiture of $43.00 pay, 14 days extra duty, and reduction in grade to private first class/PFC (suspended for sixty days) 3. His service record is void of the complete facts and circumstances surrounding his discharge. However, his record contains a DD Form 214 that shows he was discharged from active duty on 4 September 1975 under the provision of, Army Regulation 635-200 (Personnel Separations), chapter 10 (Separation Program Designator KFS), with an under other than honorable conditions characterized. He completed 2 year, 9 months, and 25 days of active service. 4. By regulation, 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. The applicant's record is void of evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15 year statute of limitations. 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, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board found insufficient evidence of in-service mitigation and the applicant did not provide character witness statements or evidence of post- service achievements for the Board to consider in support of clemency. Although the separation documents for the applicant’s discharge were not available, based upon his voluntary request for discharge in lieu of court-martial, the Board determined he admitted guilt to a criminal offense in which his command preferred charges that could have resulted with a BCD. Based on his offense of a criminal nature, and insufficient evidence to show that he accepted responsibility or showed remorse for the events leading to his 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. 1/3/2020 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), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. When a Soldier is discharged before ETS for a reason for which an honorable discharge is discretionary, the following considerations apply. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). 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 of that regulation provides that a Soldier 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. The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. 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 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. //NOTHING FOLLOWS//