ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  2 July 2019

	DOCKET NUMBER:  AR20170012513


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 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 due to a family housing crisis, he was sent to Fort Dix, NJ.  He was unable to find a combat unit with housing.  He went absent without leave (AWOL) to New York after his 30 days were up.  This was poor judgement on his part but he turned himself into his recruiter and was escorted to Fort Anderson.  He is requesting that this infraction not be allowed to overshadow his otherwise good and honorable service.  He was under pressure and used poor judgement.  His intent was not malicious against the Army.  He is remorseful and sorry.  He had a wife and two kids and one on the way.

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

	a.  He enlisted in the Regular Army on 17 November 1977, completed initial entry training at Fort Dix, NJ, and was subsequently assigned to Germany on 20 March 1978.  

	b.  He was reported AWOL in Germany on 27 December 1978. 

	c.  Fort Dix Control Facility Form 691 (Personnel Control Facility Information Sheet), dated 8 March 1978, shows the following:

  * he was married with 3 children
  * he surrendered himself to military authorities
  * he did not want help with his problems and did not wish to return to duty
  * he wanted to be separated from the Army as soon as possible

	d.  On 19 March 1979, court-martial charges were preferred against the applicant.  His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from 27 December 1978 through 8 March 1979.

	e.  The applicant consulted with legal counsel on or about 20 March 1979.  He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him.

	f.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service.  In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was accepted he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He elected not to submit any statements in his own behalf.

	g.  His immediate and intermediate commanders recommended approval of his request for discharge with the issuance of an under other than honorable conditions discharge.

	h.  The separation authority approved the applicant's request for discharge on 31 March 1979, under the provisions of AR 635-200, chapter 10, for the good of the service, directed his reduction to the lowest enlisted grade and the issuance of a under other than honorable conditions discharge.

	i.  On 17 April 1979, the applicant was discharged from active duty.  His DD Form 214 shows he was under the provisions of AR 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with an under other than honorable conditions discharge.   He completed 1 year, 2 months, and 19 days of active service and he had 71 days of lost time from 27 December 1978 through 8 March 1979.  

4.  The applicant’s record is absent evidence that shows he applied for a discharge upgrade through the Army Discharge review Board within its 15-year statute.

5.  By regulation (AR 635-200), 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.  The issuance of a discharge under the provisions of chapter 10, AR 635-200, would have required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of a trial by court-martial.  

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 partial relief was warranted.  The applicant’s contentions were carefully considered.  He contends he had family concerns while stationed at Fort Dix, NJ.  The record shows he was assigned to Fort Dix, NJ for IET; Soldiers are not authorized to have Families accompany them during IET.  He was later assigned to Germany.  The record is absent information showing whether or not he was given an accompanied tour allowing his Family to reside with him.  The applicant went AWOL from his unit in Germany, was dropped from the rolls, and turn himself in to military control in New York; where his Family was residing.  He did address his family concerns at the time of his separation, and currently has remorse for his misconduct.  The Board determined his initial discharge character of service was warranted as a result of the misconduct.  However, based upon the time that has passed since the offense, and corroborating information on his past Family concerns, the Board agreed to grant an Under Honorable Conditions (General) characterization as he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 17 April 1979 showing his character of service as under honorable conditions (General).

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge to Honorable.
	 
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, states that 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 of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude.

	b.  Paragraph 1-13b, states that a general discharge is a separation from the Army under honorable conditions.  It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  The recipient of a general discharge is normally a member whose military record and performance is satisfactory.

	c.  Chapter 10 of this regulation provides that a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, 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.  However, the discharge authority may direct an honorable or general discharge if such are merited by the member’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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	AR20170012513


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