ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  2 July 2019

	DOCKET NUMBER:  AR20170014833


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

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 his character of discharge should be honorable.  He has attempted to have it corrected previously, but nothing was done.  It was a matter of miscommunication between the Army and himself upon discharge.

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

a. He enlisted in the Regular Army on 30 July 1973.

   b.  He received nonjudicial punishment (NJP) under Article 15 on:

* 5 October 1973, for being absent without leave (AWOL) from 1 October 1973 to 4 October 1973
* 30 April 1974, for being AWOL from 22 April 1974 to 23 April 1974
* 24 July 1974, for being AWOL from 1 July 1974 to 11 July 1974
* 13 August 1974, for two specifications of failure to be at his appointed place of duty
* 15 October 1974, for failure to be at his appointed place of duty; his punishment included reduction to private/E-1
* 24 January 1975, for being AWOL from 14 January 1975 to 21 January 1975
* 21 April 1975, for being AWOL from 7 April 1975 to 17 April 1975

   c.  On 5 June 1975, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Chapter 13, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for unfitness.  He acknowledged receipt of the notification of separation action on the same day.

   d.  On 5 June 1975, after consulting with legal counsel, he acknowledged:

* his right to appear before an administrative separation board
* the rights available to him and the effect of waiving said rights
* he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued to him
* it is unlikely he will be able to change to character of his discharge at a later date

   e.  On 9 June 1975, his immediate commander initiated action to separate him under the provisions of Chapter 13, AR 635-200 for unsatisfactory performance, repeated history of AWOLs, incidents of a discreditable nature with both civil and military authorities, and his failure to maintain standards and appearance of a Soldier.

   f.  On 25 June 1975, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation under the provisions of Chapter 13, AR 635-200, for unfitness.  He would be issued an undesirable discharge. 

	g.  On 26 June 1975, he was discharged from active duty with an under other than honorable conditions characterization of service.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 9 months, and 13 days of active service with 44 days of time lost.  It also shows he was awarded or authorized:

* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar 

4.  On 10 August 1981, the applicant applied to the Army Discharge Review Board and his request for upgrade was denied and it was determined that he was properly discharged.

5.  By regulation, action will be taken to separate an individual for unfitness when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort is unlikely to succeed.  An individual separated by reason of unfitness, will be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstances in the case.  

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 short term of honorable service completed prior to multiple AWOL offenses, as well as a 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.


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 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) states 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.

   c.  Chapter 13 of the regulation states action will be taken to separate an individual for unfitness when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort is unlikely to succeed.  An individual separated by reason of unfitness, will be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstances in the case.  
   
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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170014833


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