ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 July 2019 DOCKET NUMBER: AR20170011470 APPLICANT REQUESTS: 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 Forces of the United States) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Department of Veteran Affairs (VA) Form 21-4138 (Statement in Support of Claim) 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 his discharge upgraded, so he can be eligible for medical benefits. 3. The applicant provides: * DD Form 214 showing his service from 15 March 1971 to 31 August 1973 * VA Form 21-4138, requesting upgrade to his discharge for Veterans Affairs purpose 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 15 March 1971 and extended for a period of 12 months on 18 March 1971. b. His DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) from 11 March 1973 and dropped from the rolls (DFR) as a deserter on 8 April 1973. He returned to military control on 31 July 1973. c. On 31 January 1973, he was convicted, his sentence was approved and duly executed by a special court-martial for the following two charges: * Specification 1 and 2, disrespectful language toward Sergeant First Class X___ and wrongfully have in his possession an undetermined amount of marijuana * Specification 1 and 2, wrongfully communicate a threat to Sergeant First Class WH and wrongfully have in his possession an undetermined amount of marijuana * He was found guilty on all charges, reduced to the grade of E1, confined to hard labor for 3 months and forfeiture of $166.00 per month for 3 months. d. On 2 August 1973, court-martial charges were preferred against him. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of being absent without authority from 11 March 1973 to 31 July 1973. e. On 3 August 1973, the applicant consulted with legal counsel and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service. He elected to submit a statement on his own behalf, but there is no enclosure as stated with his statement for the Board to review, he acknowledged: * the maximum punishment * he understood that he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge * if his discharge is accepted, he may be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate * he would be deprived of many or all Army benefits and that he may be ineligible for many or all benefits administered by the Veterans Administration and benefits as a veteran under both Federal and State laws f. On 29 August 1973, consistent with the chain of command recommendations, the general court martial convening authority approved the applicant’s request for discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) chapter 10, for the good of the service and directed he be issued an undesirable discharge certificate. g. On 31 August 1973, he was discharged from active duty under the provisions of AR 635-200, chapter 10, in-lieu of court martial, separation program number (SPN) 246, for the good of the service, his characterization of service is under other than honorable conditions. h. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year, 9 months and 14 days of net active service, with 247 days of lost time from 16 December 1972 to 27 February 1973 and 11 March 1973 to 31 August 1973. He was awarded or authorized the: * National Defense Service Medal * Armed Forces Expeditionary Medal * Marksman Marksmanship Qualification Badge with Rifle Bar 5. By regulation, Soldiers separated under AR 635-200, paragraph 10, in lieu of trial by court martial are assigned the Separation Code KFS in accordance with AR 635-5-1 (Personnel Separations – Separation Program Designators). 6. By regulation, discharges under the provisions of chapter 10 of AR 635-200 provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. 7. 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the short term of honorable service completed prior to a pattern of misconduct, which included a lengthy AWOL offense, 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 635-200 (Personnel Separations - Enlisted Personnel), 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. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). 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 discharged because of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. c. Chapter 10 of the regulation provides that a Soldier 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. The discharge request maybe submitted after the court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. 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. ABCMR Record of Proceedings (cont) AR20170011470 4 1