ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  8 July 2019

	DOCKET NUMBER:  AR20170013693


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 had to take care of his father and grandmother who raised him.  His spouse, at the time, felt the same way.  His grandmother was blind, his father had emphysema, and his mother had cancer.  His discharge was based on him not being well educated and not knowing that since he was the only son that was grounds for him to be discharged honorably under the circumstances.  He loved the Army and truly wish he could have stayed.

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

	a.  He enlisted in the Regular Army on 9 August 1977.

	b.  He accepted nonjudicial punishment on 27 February 1978 for on or about 
16-17 February 1978 without authority, failure to go the time prescribed to your appointed place of duty.

	c.  On 23 May 1978, a DD Form 458 (Charge Sheet), indicates he was charged with one specification of being absent without leave (AWOL) on or about 23 March 1978 and did remain so absent until on or about 11 April 1978.  He was charged with second specification of being AWOL on or about 17 April 1978 and did remain so absent until on or about 21 May 1978.

	d.  He acknowledged and consulted with legal counsel on 24 May 1978.  Counsel advised him of the contemplated trial by court-martial for offenses punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge, he acknowledged:

* he was making the request of his own free will and he had not been subjected to any coercion
* by submitting this request he was acknowledging he was guilty of the charge(s) against him or a lesser included offense
* he understood that if the discharge request was accepted he could be furnished an Under Other Than Honorable Discharge
* he understood if such a discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws

	d.  On 24 May 1978, his command recommend separation action against him in accordance with AR 635-20, chapter 10.  

	e.  On 6 June 1978, consistent with the chain of command recommendation, the separation approval authority approved the applicant’s request for discharge for the good of the service.  He would be discharged with an under other than honorable conditions discharge, reduction to the lowest enlisted grade.

	f.  On 15 June 1978, the applicant was discharged from active duty.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of AR 635-200, chapter 10, with an under other than honorable condition characterization of service.  He completed 8 months and 13 days of active service with 54 days of lost time.

4.  By regulation, a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

5.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or

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 prior to a pattern of misconduct, 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 635-200 (Personnel Separations – Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-13 (Honorable discharge) states 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.  Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate.

	b.  Paragraph 1-13b (General discharge) 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.

	c.  Paragraph 1-13c (Under other than honorable conditions) A discharge under other than honorable condition is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, for security reasons, or 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 ABCMRs 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, ABCMRs 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)	 AR20170013693


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