ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 October 2019 DOCKET NUMBER: AR20170014633 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 (Certificate of Release or Discharge from Active Duty) 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 (ABCMR) 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 his active duty was otherwise faithful and honorable, until events just prior to a change of station situation. He was on orders to go to Germany and he was having a hard time with his supply sergeant with turning in his TA-50. Nothing was missing, but the supply sergeant was having issues about the condition of the TA-50 and he would not accept it. His unit was out in the field, so he had no immediate support for the issue and became extremely frustrated and ended up going absent without leave (AWOL). He has regretted his bad decision ever since; however, he is requesting an upgrade to his discharge to quality for the Department of Veterans Affairs benefits. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 14 June 1977. b. He served overseas in Korea from 26 October 1977 until 22 October 1978. c. On 25 September 1979, he accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go, at the time a. prescribed, to his appointed place of duty on 28 and 29 August 1979. His punishment included a reduction to private/E-2. d. On 26 March 1980, he accepted NJP under Article 15, UCMJ for missing movement to Germany on or about 21 February 1980 and on 21 March 1980, departing his unit in an AWOL status and did not return to military control until 25 March 1980. His punishment included a reduction in rank to private/E-1. e. His record is void of his DD Form 458 (Charge Sheet) which would have showed that court-martial charges were preferred against him. His record is also void of his request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service in lieu of trial by court-martial, but it does contain the separating authority’s approval, dated 23 May 1980. f. His DD Form 214 shows he was discharged on 29 May 1980 for the good of the service in lieu of trial by court martial and issued an under other than honorable conditions discharge. He completed 2 years, 10 months and 7 days of net active service this period with lost time from 4 February 1980 to 4 February 1980, 21 March 1980 to 24 March 1980 and 28 March 1980 to 30 April 1980. 4. On 21 June 1982, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 5. 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. 6. The Board should 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 for consideration of discharge upgrade requests, the Board determined that relief was not warranted. The Board found insufficient in-service mitigating circumstances and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based upon the multiple AWOL offenses, including some including missing military movements, and by a preponderance of evidence 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: 1. 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. 10/25/2019 X CHAIRPERSON Signed by: 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 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. a. 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. 1. NOTHING FOLLOWS