ARMY BOARD FOR CORRETION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  2 July 2019

	DOCKET NUMBER:  AR20170010894


APPLICANT REQUESTS: 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)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 

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 is requesting an injustice be corrected because he did not believe in the Vietnam War, and states his cousin came home in a body-bag for no reason.  He believes the record to be unjust because many personnel that were absent without leave (AWOL) were granted immunity.

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

a.  He enlisted in the Regular Army (RA) on 26 March 1971. 

b.  His  DA Form 20 (Enlisted Qualification Record) shows:

* 13 August 1971 – enroute to Vietnam
* 1 September 1971 to 4 February 1972 – AWOL and DFR (dropped from rolls as a deserter)
* 9 February 1972 – duty Soldier US Army Personnel Control Facility (USAPCF), Fort Riley, KS
* 13 March 1972 – date of rank – private (PV1)/E-1
* 24 March 1972 to 11 April 1972 - AWOL
	c.  DA Form 458 (Charge Sheet), dated 25 February 1972, shows he was charged with AWOL with one specification of AWOL from 1 September 1971 to 5 February 1972

d.  The applicant completed a Statement (no date) of AWOL that shows:

* he was advised by LT X___  at USAPCF, FRK
* advised of his right to counsel
* did not request representation by counsel
* understood all his rights set before him
* waived his right to consult with an attorney
* admitted his period of AWOL from 1 September 1971 to 5 February 1972

	e.  On 28 February 1972, the applicant consulted with counsel and was advised of the contemplated trial by a court-martial that could adjudge a bad conduct or a dishonorable discharge.  He was advised of the implications attached to the discharge and understood he may be discharged under other than honorable conditions.  He was advised he could submit any statements he desired in his own behalf, but elected not to submit any statements.  Following this consult, he voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service.  In his request for discharge, he acknowledged his understanding that if his discharge request was approved, he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could encounter substantial prejudice in civilian life by reason of an undesirable discharge. 

	f.  The chain of command approval was completed on 29 February 1972 with recommendation for an Undesirable Discharge Certificate.

	g.  On 13 March 1972, the separation authority approved the discharge action and ordered the applicant receive an Undesirable Discharge Certificate.

4.  He was discharged on 11 April 1972, under authority of AR 635-200, Chapter 10 for good of the service in lieu of court-martial with a character of service under other than honorable conditions.  His DD Form 214 shows he completed 6 months, 20 days of active service during the period and he had lost time of 176 days.  He was awarded or authorized the Sharpshooter Marksmanship Qualification badge (M-16 Rifle or Pistol)

5.  By regulation AR 635-200, (Personnel Separations) a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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, 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 his desertion, as well as the failure to accept responsibility and show remorse for the events leading to his separation, 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.  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), in effect during the applicants era of service, sets forth the basic authority for the separation of enlisted personnel.  
   a.  Paragraph 1-9d provides that an honorable discharge is a separation with honor and issuance will be conditioned upon proper military behavior and proficient performance of duty during the current enlistment.

   b.  Paragraph 1-9e provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  
   
   c.  Paragraph 1-9f provides that an undesirable discharge is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service.

   d.  Chapter 10 of the regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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)	 AR20170010894


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