ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 June 2019 DOCKET NUMBER: 20170011632 APPLICANT REQUESTS: an upgrade of under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans 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 that she is currently incarcerated and needs consideration for the parole board. 3. The applicant provides her VA Form 21-4138 (Statement in Support of Claim) where she states that she left Fort Dix to go to her father’s family in New York after some men from his battalion got really scared from news in Vietnam. 4. A review of the applicant’s service records shows: a. She enlisted in the Regular Army (RA) on 7 September 1967. b. She was reported absent without leave (AWOL) from 15 November 1968 to 6 February 1976. c. Her DD Form 458 (Charge Sheet) is unavailable in her record. d. She consulted with legal counsel on 11 February 1976. Counsel advised her that she was currently pending trial by court-martial for violation of Article 86, AWOL. If convicted, the Manual for Courts-Martial authorizes as part of the punishment for this (these) offense(s) the issuance of a bad conduct or dishonorable discharge. She 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). She acknowledged: * if her request was accepted, she may be discharged under other than honorable conditions and furnished an under other than honorable conditions discharge * she may ineligible for many or all benefits administered by the Veterans Administration, and she may be deprived of rights and benefits as a Veteran under both Federal and State laws * she may expect to encounter substantial prejudice in civilian life because of an undesirable discharge e. The chain of command recommended approval. f. On 11 March 1976, consistent with the chain of command recommendation, the separation authority approved the applicant’s request with an under other than honorable conditions discharge under the provisions of chapter 10, AR 635-200, Chapter 10 (In Lieu of Trial by Court-Martial). g. On 31 March 1976, she was discharged from active duty. Her DD Form 214 (Report of Separation from Active Duty) shows she was discharged under other than honorable conditions characterization of service, under the provisions of AR 635-200, Chapter 10 (In Lieu of Trial by Court-Martial). She completed 1 year and 22 days of active service with 2,767 days of lost time. 5. By regulation, 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 an individual who is discharged for the good of the service. 6. In reaching its determination, the Board can consider the applicant’s petition and her 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 service completed prior to a pattern of misconduct, as well as a lack of appropriate mitigating reasons or justification for considering the upgrade, the Board concluded that the characterization of service received at the time of discharge was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX XX XX 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 1-9d (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 this regulation states 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 an individual 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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 on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. ABCMR Record of Proceedings (cont) 20170011632 4 1