ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	
	BOARD DATE:  7 October 2019

	DOCKET NUMBER:  AR20170010729


APPLICANT REQUESTS: a reconsideration to his previous request for an upgrade 
to his under other than honorable conditions discharge  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 293 (Application for the Review of Discharge from the Armed Force of the 
United States)

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 AR20160007916 on 11 July 2018.

2.  The applicant states:

     a.  He joined the United States Army in the Delayed Entry Program/DEP on 
August 26, 1973 and went active duty on August 8, I974.  He signed up with his 
recruiter's guarantee that he was to be trained in the military occupational specialty 
(MOS) of underwater welding.  This was supposed to be his MOS and he is asking 
for all his military records, to include his signed contract to be reviewed.  He would 
like the Board to look at his performance reports.  He was never in trouble and did 
as he was ordered and was very much a team member/player in his squad.  In 
addition, he would like the Board to know that he left to care for his parents, notified 
the authorities, and went back as soon as his father's health improved. 
 
     b.  Upon his return, he was discharged with an under other than honorable 
conditions character of service.  His reason for signing his military active duty 
contract was because he was guaranteed the MOS, underwater welding.  He was 
very proud to know that he was going to serve in the US Army as an underwater 
welder and very much looked forward to this major change and challenge in his life.  
After basic training, he was transferred to Fort Eustis, Virginia for watercraft 
operations and not US Army Base, Hawaii for welding school.  After numerous 
meetings with his commander explaining the circumstances of the wrong school and 
his contract, he was trained in different schools, but not what he had signed up for.      
     c.  The commander informed him that he would have a Warrant Officer contact 
him to make the change, but he was never contacted and after fifteen (15) months of 
doing odd jobs to include chipping paint off ships, he was contacted and told his 
father had a heart attack.  He spoke to his non-commissioned officer about his family 
emergency, but was ignored.  He was the only family member left.  The commander 
refused to give him an Article 15, as was advised by the first sergeant, but instead 
had him sign discharge paperwork.  The commander advised him that within six 
months the type of discharge he is receiving would be automatically be reviewed 
and upgraded.  Unfortunately this never happened.  Upon review of his case, he ask 
that he be granted an upgrade to his discharge.   

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

	a.  He enlisted in the Regular Army on 26 August 1974.

	b.  On 16 December 1974, he accepted non judicial punishment under the 
provisions of Article 15, Uniform Code of Military Justice, (UCMJ), for departing his 
unit in an absent without leave (AWOL) status on 23 October 1974 and did not 
return to military control until 3 December 1974.  

	c.  On 3 June 1975, he departed his unit in an AWOL status and was 
immediately dropped from the rolls.  On 21 August 1975, he was apprehended by 
civilian authorities and returned to military control.

	d.  According to his DD Form 458 (Charge Sheet), dated 27 August 1975, court-
martial charges were preferred against him for one specification of going AWOL 
from 3 June 1975 until 18 August 1975.

	e.  On 24 August 1977, he consulted with legal counsel who advised him of the 
contemplated trial by court-martial and the maximum permissible punishment 
authorized under UCMJ, of the possible effects of a bad conduct or dishonorable 
discharge, if the request is approved and of the procedures and rights available to 
him.

	f.  Following consultation with 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 understood that by requesting discharge he was admitting guilt to the 
charges against him or of a lesser-included offense that also authorized 
the imposition of a bad conduct discharge or a discharge under other 
honorable conditions
*	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 not to submit a statement on his own behalf

	g.  On 26 August 1975, his commanding officer recommended that the applicant 
be discharged for the good of the service and receive an AR 635-200, Chapter 10 
and receive an under other than honorable conditions discharge.

	h.  Consistent with the commanders recommendation, on 26 August 1975 the 
separation authority approved his request for discharge under the provisions of 
AR 635-200, Chapter 10, and directed the issuance of an under other than 
honorable conditions discharge and a reduction in rank to the lowest enlisted grade 
prior to separation.

	i.  The applicant was placed on 188 days of excess leave from 29 August 1975 
until 3 March 1976.

	j.  His DD Form 214 shows he was discharged on 3 March 1976 for the good of 
the service in lieu of trial by court martial with a characterization of service of under 
other than honorable conditions.  He completed 1 year, 2 months and 11 days of net 
active service with 118 days of lost time.  

4.  	By regulation,(AR 635-200) an individual who has committed an offense or 
offenses, the punishment for 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.

5.  The Board should 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 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 short term of honorable 
service completed prior to multiple lengthy period of AWOL offenses, 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 to amend the decision of the ABCMR set forth in Docket 
Number AR20160007916 on 11 July 2018.

	  
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.  AR 15-185 (Army Board for Correction of Military Records (ABCMR)) states 
ABCMR members will review all applications that are properly before them to 
determine the existence of an error. The ABCMR will decide cases on the evidence 
of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a 
hearing.  Applicants do not have a right to a hearing before the ABCMR.  The 
Director or the ABCMR may grant a formal hearing whenever justice requires.

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 1-9d (Honorable) provides that 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) provides that 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 discharged by reason of 
misconduct, unfitness, unsuitability, homosexuality or security, the specific basis for 
such separation, will be included in the individuals military personnel record.  

	c.  Chapter 10 of that regulation provides, in pertinent part, an individual who has 
committed an offense or offenses, the punishment for 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. The request for discharge may be 
submitted at any time after court-martial charges are preferred against him, 
regardless of whether the charges are referred to a court-martial and regardless of 
the type of court-martial to which the charges may be referred.

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//

ABCMR Record of Proceedings (cont)	 AR20170010729

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