ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  27 June 2019

	DOCKET NUMBER:  AR20170011717


APPLICANT REQUESTS: an 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). 

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 did not ask to be in the military and had to go home to take care of his mom and dad.

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

	a.  He was inducted into the Army of the United States on 4 October 1968. 
 
	b.  He received nonjudicial punishment under Article 15 on 11 February 1969 for being absent from his unit from on or about 1 February 1969 to 6 February 1969. 

	c.  On 1 August 1969, he pleaded guilty in a special court-martial for one specification of absenting himself from his unit from 5 April 1969 to 28 July 1969.  On15 August 1969, Special Court Martial Order Number 159, shows a sentence of forfeiture of $30 per month for 6 months and to be confined to hard labor for 6 months.  The sentenced was approved and duly executed.

	d.  His DD Form 458 (Charge Sheet) Is not available for review.  However, his DA Form 20 (Enlisted Qualification Record) shows that he was AWOL on 6 November 1969 and dropped from the roles as a deserter on 8 December 1969.  He returned to duty on 11 July 1974. 

	e.  On 18 July 1974, he consulted with legal counsel and 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 was guilty of the charge(s) against him or of a lesser included offense
* he does not desire further rehabilitation or desire further military service
* if his request was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate
* he may ineligible for many or all benefits administered by the Veterans Administration, and he may be deprived of rights and benefits as a Veteran under both Federal and State laws
* he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge

	f.  On 29 July 1974, consistent with the chain of command recommendations, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, AR 635-200.  He directed a discharge with an under other than honorable conditions characterization of service and reduction to private/E-1.

	g.  On 2 August 1974, he was discharged from active duty.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 7 months and 20 days of active service with 1,309 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 Under Other Than Honorable Discharge Certificate normally is appropriate for a member who is discharged for the good of the service.

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 a pattern of lengthy AWOL offenses, the Board agreed that the applicant's discharge characterization was warranted.

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 1-9d (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.  AR 15-185 (ABMCR) states ABCMR members will review all applications that are properly before them to determine the existence of an error.  The ABMCR will decide cases on the evidence of record.  It is an investigative body.  The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABMCR may grant a formal hearing whenever justice requires.  

4.  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.  
//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170011717


3


1