ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  26 June 2019

	DOCKET NUMBER:  AR20170013791


APPLICANT REQUESTS:  an upgrade to his under other than honorable conditions discharge characterization

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 he would like for his discharge to be upgraded so that he can qualify for veteran’s benefits.  

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

	a.  He enlisted in the Regular Army on 14 October 1975.

	b.  He served overseas in Korea from 6 May 1978 until 12 June 1978. 

	c.  According to his DD Form 458 (Charge Sheet) dated 8 August 1978, court-martial charges were preferred against him for one specification of departing himself from his unit in an absent without leave (AWOL) status on 12 June 1978 and did not return to military control until 31 July 1978.  

	d.  On 10 August 1978, the applicant consulted with legal counsel who advised him of the contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), of the possible effects of a discharge under other than honorable conditions, if the request is approved and of the procedures and rights available to him.

	e.  Following consultation with counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  In his request for discharge, he indicated:

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person
* he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions
* he acknowledged he understood if his discharge request 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 acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected not to submit a statement on his own behalf

	f.  His chain of command recommended that he be discharged for the good of the service under the provisions of AR 635-200, chapter 10, and receive an under other than honorable conditions discharge, but on 30 August 1978, the separation authority denied his request.

	g.  According to his Charge Sheet dated 22 April 1980, court-martial charges were preferred against the applicant for two specifications of departing himself from his unit in an AWOL status on 12 June 1978 and did not return to military control until 31 July 1978 and then again on 22 September 1978 and did not return to military control until 17 April 1980.

	h.  On 2 May 1980, he consulted with legal counsel who advised him of the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ, of the possible effects of a discharge under other than honorable conditions, if the request is approved and of the procedures and rights available to him.

	i.  Following consultation with counsel, he requested discharge under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  In his request for discharge, he indicated:

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person
* he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions
* he acknowledged he understood if his discharge request 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 acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected not to submit a statement on his own behalf

	j.  His commander recommended that he be discharged for the good of the service under the provisions of AR 635-200, chapter 10, and receive an under other than honorable conditions discharge citing the applicant’s period of AWOL being excessive.

	k.  Consistent with the commander’s recommendation, the separation authority approved his request for discharge under the provisions of AR 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge and to be reduced in rank to private/E-1.

	l.  His DD Form 214 shows he was discharged on 6 June 1980, for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  It also shows he completed 2 years, and 11 months of active service with lost time from 12 June 1978 to 30 July 1978 and 22 September 1978 to 16 April 1980.  He was awarded or authorized:

* Army Commendation Medal
* Air Assault Badge

4.  By regulation, 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.  

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 review of the application and all evidence, the Board determined relief is not 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 record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

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 1-13a provides that 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 provides that 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. The member may have had frequent non-judicial punishments but not for serious infractions.

	c.  Chapter 10 of that regulation provides, in pertinent part, that 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 provisions of the Table of Maximum Punishments, Section B, paragraph 127c MCM 1969 (Rev) are not applicable to requests for discharge pursuant to this chapter.  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.  The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court-martial convening authority.

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 solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.
//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170013791


5


1