ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  14 June 2019

	DOCKET NUMBER:  AR20170010290


APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge characterization

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 according to what he was told when he was discharged, he was eligible for an upgrade.  He was discharged for drug use because he had a substance abuse problem and back then they weren’t given medical intervention.  It was viewed as a behavioral issue instead of a coping mechanism.  He was also told he was qualified to receive an upgrade in order to receive healthcare from the Veterans Administration.

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

	a.  He enlisted in the Regular Army on 14 July 1972.

	b.  According to his DD Form 458 (Charge Sheet), dated 7 November 1973, court-martial charges were preferred against him for two counts of being absent without leave (AWOL) on 13 August 1972 to 31 October 1972 and 1 December 1972 to 19 January 1973. 

	c.  On 6 February 1973, following consultation with legal counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  In his request for discharge, he indicated:

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person
* he acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected to submit a statement on his own behalf

	d.  His chain of command recommended approval of his request for discharge with the issuance of an under other than honorable conditions discharge.

	e.  Consistent with the chain of command's recommendation, the separation authority approved his request for discharge on 5 March 1973, under the provisions of AR 635-200, chapter 10, and directed the issuance of an undesirable discharge certificate and reduced to the lowest enlisted grade of private/E-1.

	f.  His DD Form 214 shows he was discharged on 15 March 1973, for the good of the service in lieu of trial by court martial with a characterization of service of under other than honorable conditions.  It also shows he completed 2 months and 19 days of active service with 163 days lost.  His record also shows he was awarded or authorized the National Defense Service Medal.

4.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his character of service.  After considering the evidence, the ADRB denied his request.
5.  By regulation,(AR 635-200) a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States 1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.  

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 two lengthy AWOL offenses, the Board concluded that there was insufficient evidence to show that an error or injustice was present which would warrant making a change to the applicant’s characterization of service.

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 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  
	a.  Paragraph 3-7a (Honorable) provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member'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.

	b.  Paragraph 3-7b (General) provides 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.  A characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization.  It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty.

	c.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses, the punishment for which, under the UCMJ and the MCM, 1969 (Rev), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.  The provisions of the Table of Maximum Punishments, section B, paragraph 127c, MCM 1969 (Rev) do not apply
to requests for discharge per this chapter unless the case has been referred to a court-martial authorized to adjudge a punitive discharge.  The discharge request may be submitted after court-martial charges are preferred against the member, or, where required, after referral, until final action on the case by the court-martial convening authority.

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.


ABCMR Record of Proceedings (cont)	 AR20170010290


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