ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 July 2019 DOCKET NUMBER: AR20170015505 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 it has been over 45 years since his discharge. He believes the Army should upgrade his discharge. He never received any pay from the military doing his time in the service. He asks that the Army find it in their heart to give him an upgrade; he would be so thankful and appreciative. He was a young man with a drinking problem that just didn’t know any better. 3. Review of the applicant's service records shows: a. He enlisted in the Regular Army on 23 December 1969. b. On 9 March 1970, he accepted nonjudicial punishment for being absent without leave (AWOL) from 7 to 8 March 1970. c. On 30 November 1971, court-martial charges were preferred against him. His DD Form 458 (Charge Sheet), indicate he was charged with one specification of being AWOL from 22 April 1971 to 22 November 1971. d. On 23 December 1971, he consulted with legal counsel. Counsel advised him of the contemplated trial by court-martial for offenses punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request a. for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Separation Documents). In his request for discharge, he acknowledged: * he was making the request of his own free will and he had not been subjected to any coercion * by submitting this request he was acknowledging he was guilty of the charge(s) against him or a lesser included offense * he understood that if the discharge request was accepted he could be furnished an Under Other Than Honorable Discharge * he understood if such a discharge 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 could be deprived of his rights and benefits as a veteran under both Federal and State laws e. His chain of command recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge. f. On 13 January 1972, the separation authority approved his request for discharge under the provisions of AR 635-200, chapter 10 and directed his service be characterized under other than honorable conditions and he w be issued an Undesirable Discharge Certificate. g. On 7 February 1972, the applicant was discharged from active duty. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of AR 635-200, chapter 10, with an under other than honorable condition characterization of service, issued a DD Form 258A. He completed 1 year, 5 months, and 23 days of active service with 211 days of lost time. h. On 19 July 1982, the Army Discharge Review Board (ADRB), after careful consideration of his military records and all other available evidence, has determined that he was properly discharged. The ADRB denied his request for a change in the type and nature of his discharge. 4. By regulation, a member who has committed an offense 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 1. 5. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or 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 for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board found no evidence of in-service mitigating factors and the applicant did not provide character witness statements or evidence of post-service achievements for the Board to consider as a matter of clemency. Based on a preponderance of evidence, to include the short term of honorable service completed prior to multiple AWOL offenses, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct; the Board found no error or injustice. 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. 7/19/2019 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 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. a. Paragraph 1-13 (Honorable discharge) states 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. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. b. Paragraph 1-13b (General discharge) 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. c. Paragraph 1-13c (Under other than honorable conditions) A discharge under other than honorable condition is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, for security reasons, or for the good of the service 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 ABCMRs 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, ABCMRs 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.