ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 September 2019 DOCKET NUMBER: AR20170010861 APPLICANT REQUESTS: 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). 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. The applicant states when he was in the Army he was young and immature. He had personal problems with his fiancée at the time and did not report to the Army. Since his discharged, he has made a good living as a Cabinet Maker and he believes that one mistake should not destroy a good military record. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 25 March 1968. b. He served in Vietnam from 20 January 1969 to 19 June 1970. c. He consulted with legal counsel on 13 January 1971. Counsel advised him of the contemplated trial by a court-martial and of his rights. The applicant subsequently requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10 (Discharge for the Good of the Service). He acknowledged: * maximum punishment * he was guilty of the charges against him or of a lesser included offense * he did not desire further rehabilitation or 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 * as a result of the issuance of an under other than honorable conditions discharge, he would be deprived of many or all Army benefits * he may be ineligible for many or all benefits administered by the Veterans Administration * he may be deprived of his rights and benefits as a veteran under both Federal and State law * once his resignation is submitted, it may be withdrawn, whether or not accepted, only with consent of the commander exercising general court- martial jurisdiction over him * he elected not to submit a statement in his own behalf d. Court-Martial charges were preferred against him on 1 February 1971. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of being absent without leave (AWOL) from 23 July 1970 and remained so absent until on or about 11 January 1971. e. Consistent with the chain of command recommendations on 3 March 1971, the separation approval authority approved the applicant’s request for discharge for the good of the service. He would be discharged with an under other than honorable conditions discharge and reduced to the lowest enlisted pay grade f. On 13 March 1971, he was discharged from active duty under the provisions of AR 635-200, Chapter 10 with an under other than honorable conditions discharge characterization of service. His DD Form 214 shows he completed 2 years, 3 months and 27 days of net active service with 236 days of lost time. It also shows he was awarded or authorized the: * National Defense Service Medal * Vietnam Service Medal * Vietnam Campaign Medal * Overseas Ribbon 4. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 5. By regulation, a member 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. An Under Other Than Honorable Discharge Certificate normally is appropriate for a member who is discharged for the good of the service. 6. 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined partial relief was warranted. Based upon the short term of honorable service completed prior to a pattern of misconduct, the Board concluded that the characterization of service received at the time of separation was appropriate. 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 (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. c. Chapter 10 of that regulation provides that an individual 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. An undesirable discharge certificate will normally be furnished for an individual who is discharged for the good of the service. If warranted, however, the discharge authority may direct an honorable or general discharge. 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 (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 acknowledgment that a relative error or injustice was committed, or 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 benefits or similar benefits that might have been received if reason for the discharge had been for the revised reason or had the upgraded service characterization. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170010861 4 1