ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  19 June 2019

	DOCKET NUMBER:  AR20170010093


APPLICANT REQUESTS:  reconsideration of his earlier request for 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)
* Letters from Family members

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070001711 on 17 July 2007.

2.  The applicant states that he was given the wrong information about having his family with him and being able to live off post.  His wife has hearing problems and does not have a driver license.  He could not abandon his wife and infant son.

3.  The applicant provides:

   a.  Letter from DL stating that they have been married for 43 years and their infant son was born when the applicant was 17 years of age.  She has hearing problems since four to six years of age which was caused by infections from a fungus in the water where she and her family swam when she was a child.  She had her first surgery at the age of 15 on the right ear.  The surgery on her left ear was when she was 20 years of age due to an infection and tumor.  Since this time, she has had four more surgeries.  The applicant was told by Sergeant (SGT) X__ and SGT X__ that he could live off post with his family, so she went with him to Fort Polk, LA.  Upon their arrival, the applicant was told that he could not have his family there with him.  There was difficulty in locating safe living accommodations due her hearing condition however, as soon as she and their son was settled back home the applicant turned himself in.  She requests the Board reconsider their previous decision on the discharge upgrade because the applicant has paid for the discharge for 42 years because of caring for his family.
   b.  Letter from X stating it has been 42 years since the applicant was dishonorably discharge from the U.S. Army.  He can remember the applicant and him talking about the circumstances that led up to the discharge.  Now, that X has served in the Army for 14 years he had come to realize why the Army has changed how they do business when it comes to taking care of families.  X states that the Army has learned from their mistakes.  He is writing to request that the applicant’s discharge be changed from dishonorable status.  The applicant has been with his mother, three brothers and him for their entire lives and has been the most honorable person that he knows, to include active duty service members from multiple branches of services.  It is because of the morals and values that the applicant has instilled in him that he has been able to progress rapidly in his military career.

   c. Letter from X stating that 42 years is long enough and is requesting the Board consider changing the applicants discharge to honorable.

   d.  Letter from X stating that the applicant was told that he could have his wife and child with him; however, when he arrived in LA, he was told that he could not live off post with his family.  After the applicant's inability to locate a place for his wife, who has had hearing problems most of her life, to live he brought her back home and he then turned himself in.

   e.  Letter from X stating that this letter of request is for the applicant to have his discharge changes.  The applicant left to care for his wife, who has hearing problems, and his son.  He has taken care of his family all this time and after 42 years X feels like he has served.

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

   a.  He enlisted in the Regular Army on 2 January 1975.  Following completion of training, he was assigned to Fort Polk, LA. 

	b.  On 16 April 1975, he was reported in an absent without leave (AWOL) status and on 16 May 1975, he was dropped from the rolls as a deserter.  He surrendered to military authorities at Fort Sill, OK on 5 August 1975. 

	c.  DD Form 458 (Charge Sheet), on 5 August 1975, court-martial charges were preferred against the applicant for one specification of absent without leave (AWOL) for the period of 16 April 1975 to 5 August 1975.

	

d.  On 8 August 1975, after consulting with legal counsel, the applicant requested a discharge for the good of the service under the provisions of chapter 10, 
Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel).  He acknowledged:

* maximum punishment
* making request of his own free will and have not been subjected to any coercion whatsoever by any person
* he has been advised of the implications that are attached to the request for discharge
* he is acknowledging that he is guilty for the charge(s) against him or of a lesser included offense(s)
* under no circumstances does he want rehabilitation and has no desire for further military service
* if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* he may be deprived of many or all Army benefits
* he may be deprived of his rights and benefits as a veteran under both Federal and State law
* he may expect to encounter substantial prejudice in civilian life

   f.  Consistent with the chain of command recommendations, the separation authority approved the applicant’s request for discharge for the good of the service on 14 August 1975.  He would be issued an Undesirable Discharge Certificate.

	g.  He was discharged from active duty on 19 August 1975 with an under other than honorable conditions characterization of service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 months, and 28 days of active service and 22 days of inactive service with 111 lost days.

5.  He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 17 July 2007, the ADRB determined his discharge was proper and equitable, and denied his request. 

6.  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.  

7.  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 and letters of support 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 evidence of post-service achievements for the Board to consider.  Based upon the short term of service completed prior to the lengthy AWOL offense, 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.  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.

2.  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)	 AR20170010093


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