ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 June 2019 DOCKET NUMBER: AR20170012535 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) * Discharge Special Orders, #101, dated 17 May 1971 * DD Form 258A (Undesirable Discharge Certificate), dated 18 May 1971 * Statement of Age 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: a. He has much respect for the military and wishes he never made the mistakes he made while in the Army. He adds that he followed the advice of his administrator and he believes that is why he was issued an under conditions other than honorable conditions discharge. b. Although he recently suffered a heart attack, he explains that he is not requesting Veteran Administration services or medical benefits. However, he would like to gain access to the Exchange and Commissary. 3. The applicant provides: a. A copy of an undesirable discharge certificate, and discharge orders (special order #101), which reflects the applicant was discharged, under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel, Chapter 10 (Discharge For the Good of the Service), effective 17 May 1971. b. A Statement of Age, dated 31 January 1972, which certifies that the applicant’s birth certificate is on file in the office of the Department of Health in Montgomery County, Maryland. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 28 April 1970. b. On 23 June 1970, he accepted nonjudicial punishment, Article 15, for failure to go at a prescribed time to an appointed place of duty. He received forfeiture of $20.00 pay for one month and 10 days extra duty. c. Court-martial charges were preferred on 26 April 1971. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of being absent without leave from 13 September 1970 to 19 April 1971. d. He consulted with legal counsel and 26 April 1971, and subsequently, requested discharge under provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 (Discharge For the Good of the Service). He acknowledged: * if his request was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable 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 can expect to encounter substantial prejudice in civilian life because of the Other Than Honorable Discharge e. Consistent with the chain of command’s recommendation, on 18 May 1971, the separation authority approved the applicant’s request for separation under the provisions of chapter 10, AR 635-200, Chapter 10 (Discharge For the Good of the Service), in effect at the time. He was reduced to the grade of E1 and furnished an Undesirable Discharge Certificate. f. His DD Form 214 shows he was discharged on 18 May 1971 with an under other than honorable conditions characterization of service. He completed 5 months of active service and had 386 days of lost time. 5. By regulation, a member who has committed an offense or offenses, which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. A discharge under other than honorable conditions normally is appropriate for a soldier discharged for the good of the service. 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 lengthy AWOL offense, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his separation, 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 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states that 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 3-7b (General Discharge) states that 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 provides procedures for separating soldiers who have committed an offense or offenses, UCMJ 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 is normally appropriate for a member 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) AR20170012535 0 3 1