ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  
	BOARD DATE:  25 June 2019

	DOCKET NUMBER:  AR20180008079


APPLICANT REQUESTS:  an upgrade of his under other than honorable condition discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD form 293 (Application for the Review of Discharge 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 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 would like to receive VA benefits.

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

a.  He enlisted on 28 September 1972 in the Regular Army.

  b.  He received non-judicial punishment on 6 November 1972 for failure to go at the time prescribed to his appointed place of duty which was work formation.

  c.  The complete facts and circumstances surrounding his discharge are not available to the Board for review with this case. However on 3 June 1973 he was convicted by special court-martial of.

* one specification of without authority, absenting himself from his unit from 13 February 1973 until 28 February 1973.
* one specification of without authority, absenting himself from his unit from 2 March 1973 until 10 April 1973.

  d.  The court sentenced him to be reduced to the grade of E-1, to be confined at hard labor for 2 months, and to forfeit 60 dollars per month for 2 months. 
  
   e.  Special Court –Martial Order Number 113, dated 5 June 1973 approved the sentence and was duly executed.  

  f.  Special Orders Number 140, dated 12 July 1973, directed an undesirable discharge under the provisions of Chapter 13, AR 635-200 for unfitness.
  
   g.  He was discharged on 13 July 1973.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 months and 29 days of active service with lost times from 13 February 1973 to 27 February 1973, 2 March 1973 to     9 April 1973 and 12 April 1973 to 10 July 1973.  It also shows he was awarded the National Defense Service Medal.

4.  By regulation, action will be taken to separate an individual for unfitness when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort is unlikely to succeed.  An individual separated by reason of unfitness will be furnished an Undesirable Discharge Certificate, except that an Honorable or General Discharge Certificate may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstance in his case.

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 review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The applicant’s contentions 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 character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the record, 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.


ADMINISTRATIVE NOTE(S):

Not Applicable

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 Separation – 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 of 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) states a 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.   Chapter 13 of this regulation provides procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military 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.
//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180008079


4


1