ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  3 September 2019

	DOCKET NUMBER:  AR20170015322

APPLICANT REQUESTS:  reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge to a general

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* statement of support, 31 July 2017

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 AR20130015251 on 8 May 2014.

2.  The applicant states he is a homeless Veteran from the Vietnam Era who made bad decisions, based on an emergency at his home, during that time.  His younger sister died in childbirth leaving three children, which was his nieces and nephews and they were in his grandparent’s care.  His grandparent’s needed his help at the time because they had discipline issues and his presence there was required.  He regrets the decision that he made, because he also left his military family behind.  He served his country and his decision to leave during that time was based on his emergency family issues.

3.  The applicant provides a statement of support from XX, dated 31 July 2017, which states the applicant has dealt with numerous issues throughout his life and has made mistakes that he has dearly paid for.  XX is a case manager for the Office to End Homelessness in Norfolk, VA, and has known the applicant for two years.  In the two years that he has known him, he has found him to be honest, trustworthy, and dedicated to improving his life.  While the applicant felt as though he had good cause to separate from his service obligation during that time, he realizes now that the approach he took was wrong.  The consequences of his mistakes have followed him his entire life and now that he is older, he is seeking to make right of his mistakes from his past.  He is a good man with decent character who is working very hard to make improvements in his life, therefore, XX, is respectfully asking the Board under the provisions of Title 10, U.S. Code, Section 1552, to upgrade the applicant’s discharge from under other than honorable to general.  He thanks the Board for its support. 

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

	a.  He enlisted in the Regular Army on 27 August 1971.

	b.  He was absent without leave (AWOL) on or about 31 October 1971 to on or about 13 June 1972.

	c.  Special Court Martial Order 259 show he was convicted on 12 September 1972 of two specifications of being absent himself from his unit on or about 31 October 1971 and did so remain absent until on or about 13 June 1972.  On or about 18 July 1972, without authority absent himself from his unit and did so remain absent until on or about 24 July 1972.  His sentence included a reduction to the grade of Private/E-1, forfeiture of $75 pay per month for 4 months and confinement at hard labor for two months.  

	d.  On 10 November 1972, Special Martial Order Number 1292, affirmed the unexecuted portion of the sentence for $75 pay per month for 4 months is suspended until 16 February 1973, at which time, unless sooner vacated, the suspended portion of the sentence will be remitted without further action.    

	e.  The facts and circumstances surrounding the chain of command’s recommendations and the initial commander’s notification and initiation counseling to the applicant are unavailable for the Board to review
	
	f.  He consulted with legal counsel on 7 March 1973.  Counsel advised him of the contemplated trial by a court-martial and of his rights.  The applicant subsequently requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10 (Discharge for the Good of the Service).  He acknowledged:

* maximum punishment
* he was guilty of the charges against him or of a lesser included offense
* he was not subjected to coercion with respect to his discharge
* he did not desire further rehabilitation or further military service
* if his request for discharge was accepted, he may be discharged under other than honorable conditions 
* as a result of the issuance of an under other than honorable conditions discharge, he would be deprived of many or all Army benefits
* he may be ineligible for many or all benefits administered by the Veterans Administration
* he may be deprived of his rights and benefits as a veteran under both Federal and State law
* he may expect to encounter substantial prejudice in civilian life
* he elected not to submit a statement in his own behalf

	g.  On 17 April 1973, the separation approval authority approved the applicant’s request for discharge for the good of the service.  He would be discharged with an undesirable discharge and reduced to the lowest enlisted pay grade.

	h.  He was discharged from active duty on 18 April 1973.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed         7 months and 5 days with 377 days of lost time.  It also shows he was awarded or authorized the:

* National Defense Service Medal 
* NAVL (Rifle) Qualification Badger

5.  On 13 May 2014, the Army Board for Correction of Military Records denied the applicant’s application the he submitted on 14 August 2013, for an upgrade to a general discharge.  The Board found that the evidence does not demonstrate the existence of a probable error or injustice.  The evidence was insufficient as a basis for a correction of the records of the individual concerned.  

6.  By regulation, a member who has committed an offense or offenses, the punishment for any of which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  An under other than honorable discharge is normally appropriate for a member who is discharged for the good of the service.

7.  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 review of the application and all evidence, the Board determined relief is not warranted.  The applicant’s contentions and letter of support was 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 received a court-martial for a lengthy period of AWOL, and was later charged for another offense that was not available for the Board to review.  Based upon the short term of honorable service completed prior to the misconduct in the applicant’s record and the applicant’s voluntary request for discharge in lieu of court-martial, 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 to amend the decision of the ABCMR set forth in Docket Number AR20130015251 on 8 May 2014.


	 
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.  Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set 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 10 of that regulation states an individual who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  An Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service.

2.  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 the 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, 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 upgrade service characterization.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170015322


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