ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  24 June 2019

	DOCKET NUMBER:  AR20170013734


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  
DD Form 293 (Application for the Review of Discharge)

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 was told at the time of his discharge that his discharge would be upgraded within one year and it has not been done yet.  The reason the he elected to get out of the Army was that he had been robbed with a knife twice by his own people.  The persons that robbed him stated that if he told anyone about being robbed they would kill him.  He reported the incident to the military police (MP) and told them that the make of the vehicle that they occupied and that it had a smiley face on the rearview window.  The MPs found the vehicle but nothing was done about the incident.  The MPs told the applicant to return to his unit or get out, so the applicant chose to get out of the service.  The applicant believes that it is bad when someone wants to serve his or her country and get robbed and put into a ditch twice and nothing is done about it.  He was proud to be in the Army and he was given a marksmanship badge and sniper medals.  He was to train on the Tiger at Fort Benning and he wishes that he could do it all over again, but he cannot.  The applicant’s family home was destroyed by fire and he has no documents to submit for his case.

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

   a.  He enlisted in the Regular Army on 8 March 1977.

   b.  He accepted nonjudicial punishment 19 April 1977 on/for without authority failed to go at the time prescribed your appointed place of duty, to company muster formation.
   c.  DD Form 458 (Charge Sheet) - Court-martial charges were preferred against him on 13 December 1977 for two specifications of Absent Without Leave from 3 July 1977 to 20 September 1977 and 21 September 1977 to 30 November 1977.

	d.  After consulting with legal counsel on 12 December 1977 and 13 December 1977, he requested a discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  He acknowledged:

* maximum punishment
* making this request of my own free will and have not been subjected to any coercion whatsoever by any person
* he was guilty of a charge(s) against him or of a lesser included offense(s)
* he does not desire further rehabilitation or further military service
* if his request for discharge was accepted, he may be discharged under other than honorable conditions discharge
* he would be deprived of many or all Army benefits, he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law
* he may expect to encounter substantial prejudice in civilian life

	e.  Consistent with the chain of command recommendations, the separation approval authority approved the applicant’s request for discharge for the good of the service on 20 December 1977.  He would be issued an Other Than Honorable Conditions Discharge Certificate.

	f.  He was discharged from active duty on 28 December 1977 with an under other than honorable conditions characterization of service.  His DD Form 214 shows he completed 11 months, and 28 days of active service with 149 days lost time.  It also shows he was awarded or authorized Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  By regulation, Army Regulation 635-200, a member who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  An Under Other That Honorable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service.

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 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 service completed prior to multiple AWOL offenses and a lack of corroborating evidence to support the applicant’s statement, the Board concluded there was insufficient evidence to show that an error or injustice was present which would warrant making a change to the characterization of service.

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.  Title10, USA, section 1552(b), provided 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 status 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 (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

	b.  Paragraph 1-13b (General Discharge) states 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 states a member who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  An Under Other That Honorable Discharge Certificate will normally be furnished an individual 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.  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.

ABCMR Record of Proceedings (cont)	 AR20170013734


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