ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 July 2019 DOCKET NUMBER: AR20170013148 APPLICANT REQUESTS: in effect, that his under other than honorable conditions discharge be changed to honorable. 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 requests to have his under other than honorable discharge changed to honorable so that he can qualify for veteran benefits. 3. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army on 21 July 1980. b. His DA Form 2-1 (Personnel Qualification Record) shows in (item 21 time lost) that he was absent without leave (AWOL) from 15 November 1980 to 28 December 1980 with a total of 44 days of lost time. c. Court-martial charges were preferred on 5 January 1981. His DD Form 458 (Charge Sheet) indicates that he was charged with one specification of AWOL from 15 November 1980 to 29 December 1980. d. DA Form 3836 (Notice of Return of US Army Member from Unauthorized Absence), dated 6 January 1981, shows that the applicant was reported AWOL on 15 November 1980 and dropped from rolls on 16 December 1980. The form also shows the applicant returning to duty on 29 December 1980. e. On 6 January 1981, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and the procedures and rights available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request for discharge, he acknowledged: * He was making this request of his own free will and had not been subjected to any coercion whatsoever by any person * He understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * He acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits * He acknowledged he could be ineligible for many or all benefits administered by the VA and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * He stated that under no circumstances did he desire further rehabilitation or to perform further military service * He elected not to submit a statement on his own behalf f. On 6 January 1981, the applicant’s self-authored letter states that the first time he enlisted he realized that it was not going to be possible for him to adapt to military life. Therefore, he requests a discharge from the Army. g. On 29 January 1981, the applicant’s immediate commander recommended approval with discharge of under other than honorable conditions. The reason for the commander’s actions are that based on his previous record, punishment can be expected to have a minimal rehabilitative effect and that he believes a discharge at this time to be in the best interest of all concerned. h. On 29 January 1981, the applicant’s intermediate commander recommended approval with a discharge of under other than honorable conditions. i. On 6 February 1981, the separation authority approved separation and a discharge of under other than honorable conditions and a reduction to the grade of private/E-1. j. He was discharged from active duty on 4 March 1981. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with chapter 10, AR 635-200 under other than honorable conditions. His DD Form 214 shows he completed 6 months of active duty service with 44 days of lost time. 4. The applicant’s record is void of evidence that show he applied for a discharge upgrade with the Army Discharge Review Board within 15 years of the separation. 5. By regulation, AR 635-200, chapter 10 of this regulation states 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. The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. 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 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 honorable service completed and a lack of mitigating reasons provided by the applicant for the AWOL offense, as well as a lack of character evidence submitted by the applicant showing 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 service 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 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. When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness, and unsuitability. c. Chapter 10 of this regulation states 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, United States, 1969 (revised edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. 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. ABCMR Record of Proceedings (cont) AR20170013148 0 3 1