ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  14 June 2019

	DOCKET NUMBER:  AR20170011308


APPLICANT REQUESTS:  an upgrade of his other than honorable conditions discharge to an honorable conditions discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-Authored Statement

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 joined the military at 17 years old.  He was young and immature.  He was hanging out with the wrong crowd and eventually got into trouble with the law.  He was given a choice by the judge to join the military or go to jail.  After basic training and advanced individual training he was stationed at Fort Carson, CO.  While stationed there, his wife delivered his oldest son in El Paso, TX.  He was given emergency leave, but decided not to return to Fort Carson because he believed his young wife and son needed him around.  He was detained by the Fort Bliss Military Police and sent to the Personnel Control Facility at Fort Sill, OK.  He continued to think about his wife and son and left Fort Sill on his own and went home.  A month or two later, he received a discharge under other than honorable conditions.  He realized that he was very immature and irresponsible when he went absent without leave (AWOL).  At the time, he put his wife and son at the top of his priority list.  If he had it to do all over again, he would use better judgement.  Three of his children have joined the Air Force.  He has work for the City of El Paso Water Department for five years.  This is an indication of his character and potential as a good citizen.  He has learned from his mistakes and have been a positive role model to my children as evidenced form their military service. 


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

	a.  He enlisted in the Regular Army on 26 January 1976.

	b.  On 1 March 1979, court-martial charges were preferred against him.  His DD Form 458 (Charge Sheet) indicates he was charged with one specifications of AWOL from 22 September 1978 to 21 February 1979.  

	c.  After consulting with legal counsel, he subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  He acknowledged:

* maximum punishment
* he is guilty of the charge against him or of a lesser included offense
* he did not desire further rehabilitation
* he understood that if his request for discharge was accepted he could be discharged under other than honorable conditions
* he would be deprived of many or all Army benefits administrated by the Veterans Administration
* he may be deprived of his rights and benefits of a Veteran under both Federal and State laws
* he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge
* he submitted a statement on his behalf

	d.  On 22 March 1979, 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.  

	e.  On 29 March 1979, he was discharged from active duty.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of AR 635-200, chapter 10, with an under other than honorable conditions characterization of service.  He completed 1 year, 8 months, and 18 days of active service with 167 days of lost time from 22 September 1978 to 20 February 1979 and 15 March 1979 to 29 March 1979.  

4.  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.  

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, 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 length of the AWOL offense and a lack of character evidence submitted by the applicant to show that he has learned and grown from the time of the misconduct, the Board found there to be insufficient evidence to show there was an error or injustice which would warrant making a correction to the 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 1-13a (Honorable Discharge) states an honorable discharge is a separation with honor.  Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period or obligated service with due consideration for the member’s age, length of service, grade, and general aptitude.

	b.  Paragraph 1-13b (General Discharge) states a general discharge is a separation from the Army under honorable conditions.  It is issued to a member whose military record is satisfactory by not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 10 (Discharge for the Good of the Service) 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.  

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 the 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, 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 upgrade service characterization.  

ABCMR Record of Proceedings (cont)	 AR20170011308


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