ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  12 July 2019

	DOCKET NUMBER:  AR20170012973


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)
* Veteran Affairs(VA) Statement in Support of Claim, dated 22 June 2017

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 he had one single incident in over 8 years of military service.  

3.  The applicant provides a VA Statement in Support of Claim, which states that while his entire unit went to Korea for training, he remained at Fort Ord due to a medical profile.  He explains that during that time he and other soldiers missed a formation.  However, the company commander said “he would make an example out of him” and he would be the only Non-commissioned officer set to receive Article 15 punishment with a reduction in rank.  The applicant requested a transfer out of the unit but his request was denied. He understands he used poor judgement, however, he felt trapped and ultimately decided to go absent without leave.

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

	a.  He enlisted in the Regular Army on 19 August 1974.

	b.  He had continuous honorable service from 19 August 1974 to 27 July 1976.

	c.  Court-martial charges were preferred on 22 January 1982.  His DA Form 458 (Charge Sheet) indicates he was charged with one specification of being absent without leave from 4 May 1981 to 19 January 1982.

	d.  He consulted with legal counsel on 22 January 1982 and he elected not to submit statements on his behalf.  Subsequently, he requested discharge under provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 (Discharge for the Good of the Service), in effect at the time.  He acknowledged:

* he was guilty of the charge against him or of a lesser included offense which also authorizes the imposition of a bad conduct or dishonorable discharge
* he did not desire further rehabilitation or desire to perform 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 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 March 1982, the separation authority approved the applicant’s request for separation under the provisions of AR 635-200, Chapter 10 (Discharge for the Good of the Service), in effect at the time.

	f.  On 2 June 1982, he was discharged from active duty.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with an under other than honorable conditions characterization of service.  He completed           7 years, 9 months and 30 days of net active service with 259 days of lost time.  It also shows he was awarded or authorized the:

* Good Conduct Medal
* Expert Infantryman Badge
* Parachute Badge

4.  The applicant applied to the Army Discharge Review Board for an upgrade of his discharge, which was denied by the Board on 22 December 1983.

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.
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.  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 lengthy period of AWOL, an offense of a criminal nature, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.
However, the Board did note that the applicant had a period of prior honorable service which is not currently reflected on his DD Form 214 and recommended that be corrected to more accurately depict his military service.

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 adding the following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous honorable active service from 19 August 1974 to 27 July 1976.”
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 the characterization of his discharge.
	 
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) is a separation with honor.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b (General Discharge) states that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170012973


3


1