ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 1 July 2019 DOCKET NUMBER: AR20170014049 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the Unite States) * Self-authored Statement 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: a. He feels as though his discharge was inequitable because it was based on a period of 68 days out of his 27 months of service. He had no other disciplinary issues during his time of service. This was a period where he had some family issues going on at home and his chain of command was not very supportive. He wanted to continue to serve out the remainder of his enlistment, but his chain of command convinced him to take the discharge, stating it would not affect him. b. He was also told he could get the discharge status upgraded, but he had no idea about how to do that until his son (who is a Soldier) did some research. If he knew what he knows now, he would have never taken that discharge and completed his term of service. He was young and foolish at the time. 3. The applicant provides a detailed self-authored statement which is attached describing the incident and his military and personal experiences. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 26 August 1968. b. On 22 May 1969, he accepted non judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his unit without proper authority on 24 June 1968. c. On 18 February 1970, he accepted NJP under the provisions of Article 15, UCMJ, for departing his unit in an AWOL status on 2 April 1970 and did not return to military control until 17 February 1970. d. On 14 April 1970, he accepted NJP under the provisions of Article 15, UCMJ, for departing his unit in an absent without leave (AWOL) status on 16 February 1970 and did not return to military control until 9 April 1970 and for missing movement on 14 April 1970. His punishment included a reduction in rank to private first class/E-3. e. On 24 September 1970, he was convicted by a special court-martial of 1 specification of AWOL from 21 August 1970 to 6 September 1970. The court sentenced him to reduction to the grade of E-1, 30 days to perform hard labor without confinement and 30 days restriction to the limits of his unit. f. According to his DD Form 458 (Charge Sheet), dated 21 January 1971, court- martial charges were preferred against him for 1 specification of departing his unit in an AWOL status on 1 December 1970 and did not return to military control until 18 January 1971. g. On 25 January 1971, following consultation with legal 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 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 to submit a statement on his own behalf h. His chain of command recommended approval of his request for discharge with the issuance of an undesirable discharge characterization. i. Consistent with the chain of command's recommendation, the separation authority approved his request for discharge under the provisions of AR 635-200, chapter 10. j. His DD Form 214 shows he was discharged on 12 February 1971, for the good of the service in lieu of trial by court martial with a characterization of service of under other than honorable conditions. k. It also shows he completed 2 years, 3 months and 9 days of active service with lost time from 13 to 17 August 1970, 21 August 1970 to 5 September 1970, and 1 December 1970 to 17 January 1971. His record also shows he was awarded or authorized the National Defense Service Medal 5. By regulation, an individual who has committed an offense or offenses, the punishment for 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. 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 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 multiple offenses of a criminal nature, as well as the failure to accept responsibility and show remorse for the events leading to his separation, 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. ADMINISTRATIVE NOTE(S): Not Applicable 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) provides that 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) provides that 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, unsuitability, homosexuality, or security, the specific bases for such separation will be included in the individual’s military personnel record. c. Chapter 10 of that regulation provides, in pertinent part, that an individual who has committed an offense or offenses, the punishment for 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 him, 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) AR20170014049 4 1