ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  22 April 2019

	DOCKET NUMBER:  AR20170011538


APPLICANT REQUESTS:  An upgrade of his under other than honorable condition discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD 214 (Report of Separation from Active Duty)

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 that he would like his under other than honorable conditions discharge changed to honorable.  He states that he requested the chapter 13 discharge and did not know what type of discharge it was, he would like the discharge upgraded.  He goes on to say at the time he was young and was trying to save his marriage and he didn’t have his head on straight and that he is a business man now.

3.  The applicant provides his DD Form 214 showing his service from 1 November 1972 to 25 September 1974.

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

	a.  He enlisted in the Regular Army on 1 November 1972.

	b.  He received nonjudicial punishment on/for:  

* 30 May 1973, failure to be at the appointed place of duty
* 22 March 1974, disobeying two lawful orders, his punishment consisted in part, of reduction to E-1
* 4 April 1974, being absent without leave from 25 to 27 March 1974

	c.  On 6 August 1974, he was convicted by a summary court-martial of the charge and its one specification of being absent without leave from 12 to 24 June 1974.  The court sentenced him to forfeiture of pay for 3 months and extra duty. 

	d.  The complete fact and circumstances surrounding the applicant’s discharge are unavailable for review.  However, his record contains:

		(1)  A statement issued by Headquarters, XVIII Airborne Corps, Fort Bragg, informing him that that the reason for his separation was unfitness - frequent involvements of a discreditable nature with authorities, under the provisions of Army Regulations (AR) 635-200 (Personnel Separations) and or AR 635-206 ((Personnel Separations – Discharge – Misconduct).  The authority for his separation was AR 635-200, paragraph 13-5a(1) (frequent involvements of a discreditable nature with civil or military authorities). 

		(2)  DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 25 September 1974 under the provisions of chapter 13, paragraph        13-5a(1), AR 635-200 and his service characterization is under other than honorable conditions.  He completed 1 year, 10 months, and 11 days, and he had 14 days of lost time.  He was awarded or authorized the National Defense Service Medal.

5.  The applicant applied to the Army Discharge Review Board (ADRB) on 29 October 1981.  The ADBR found his discharge proper and equitable, and denied his request.

6.  The regulation in effect at the time provided for unfitness states that an individual is subject to separation under the provisions of this chapter when one or more of the following conditions exits due to unfitness:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault upon a child or other indecent acts of offenses.

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 warranted.  Based upon the type of misconduct and the Board finding the disposition of the misconduct too harsh for those offenses, the Board concluded there was an injustice with warranted correction.  For that reason, the Board recommended upgrading the characterization of service of the applicant’s discharge to honorable discharge. 

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General).
	 
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) sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

	b.  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).

	c.  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.

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)	 AR20170011538


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