ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 June 2019 DOCKET NUMBER: AR20170013793 APPLICANT REQUESTS: in effect, reconsideration of his earlier request to upgrade his other than honorable conditions discharge to honorable or under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160009190 on 8 August 2017. 2. The applicant states he request clemency upgrade to honorable or under honorable conditions. 3. The applicant provides his DD Form 214 that shows he was discharged with an under other than honorable conditions character of service on 5 April 1977. 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 30 November 1972. b. He accepted non-judicial punishment under Article 15 on 3 April 1973 for being absent without leave (AWOL) from his unit from on or about 2 April 1973 to on or about 3 April 1973. c. On 4 April 1974 Special Court-Martial Order Number 33, shows the he was convicted of violating three specifications of Article 86, Uniform Code of Military Justice (UCMJ). Specifically, he was convicted of being AWOL during the following periods: * from on or about 17 July 1973 through on or about 25 July 1973 * from on or about 13 August 1973 through on or about 4 January 1974 * from on or about 4 February 1974 through on or about 6 February 1974 d. He was sentenced to confinement at hard labor for 4 months and 20 days, forfeiture of $100 pay per month for 5 months, and reduction to private/E-1. The sentence was adjudged on 25 February 1974 and was approved and ordered duly executed on 4 April 1974. e. On 16 May 1974, Special Court-Martial Order Number 1051 ordered that the unexecuted portion of the approved sentence was to be suspended until 14 July 1974, unless sooner vacated. f. On 5 October 1976, Special Court-Martial Order Number 50 shows he was convicted of being AWOL from on or about 30 August 1976 to on or about 9 September 1976. He was sentenced to confinement at hard labor for 35 days, forfeiture of $50 pay per month for 2 months, and reduction to private/E-1. The sentenced was adjudged on 24 September 1976 and was approved and ordered duly executed on 5 October 1976. g. On 14 March 1977, DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence), shows the applicant was reported AWOL on or about 5 October 1976, dropped from the rolls on 13 October 1976, and surrendered to military authorities at Fort Carson, CO on 14 March 1977. h. On 15 March 1977, he consulted with legal counsel. He voluntarily requested discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial. In doing so, he acknowledged the charges preferred against him under the UCMJ authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged: * he had not been subjected to coercion with respect to his request for discharge * he had been advised of the implications that were attached to it * he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the Veterans Administration (VA) * he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge i. He submitted a self-authored statement on his own behalf, wherein he stated he had family issues with his wife (girlfriend at the time), and only joined the Army for educational opportunities. He stated his desire to be discharged from the Army. j. On 17 March 1977, his chain of command concurred with the request for discharge for the good of the service be approved. Also recommended that a discharge Under Other Than Honorable Conditions be furnished. k. On 22 March 1977, the separation authority approved his request for discharge for the good of the service in lieu of trial by court-martial and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate. l. He was discharged on 5 April 1977. He was discharged under provisions of AR 635-200, chapter 10, for the good of the service in lieu of trail by court-martial, and his service was characterized as Under Other Than Honorable Conditions. He completed 3 years, 3 months, and 7 days of active service. He had a total of 395 days of lost time. His awards included: * National Defense Service Medal * Sharpshooter Badge with Rifle Bar 5. On 10 August 2017, the applicant was notified that the Board considered his previous application under procedures established by the Secretary of the Army, and the application was denied. 6. By regulation, AR 635-200, chapter 10 provides that a member who has committed an offense or offenses 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. A discharge under other than honorable conditions is normally considered appropriate. 7. 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the number of AWOL offenses and the extended length of many of them, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the events which led to his separation, 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. Chapter 10 provides that a member who has committed an offense or offenses 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. A discharge under other than honorable conditions is normally considered appropriate. 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) A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge. 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. ABCMR Record of Proceedings (cont) AR20170013793 5 1