ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 June 2019 DOCKET NUMBER: AR20170015575 APPLICANT REQUESTS: reconsideration for an upgrade of his characterization of service from under other than honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 AR20120006836 on 15 November 2012. 2. The applicant states, that the dates on his DD Form 214 (Report of Separation from Active Duty) reflect the wrong dates for his lost time. He states that the Judge Advocate Officer he was assigned informed him that it would be in his best interest to request a Chapter 10, in lieu of a court martial. He was not informed he could reenlist in three years, nor was he informed that he could have his discharge changed. He states he did not find out about the ability to upgrade his discharge until 2015. He also states he cannot receive Veterans Affairs (VA) benefits with a Chapter 10 discharge. 3. A review of the applicant’s service records shows the following: a. He enlisted in to the Regular Army (RA) on 15 July 1975. b. His DA Form 2-1 (Personnel Qualification Record) reflects that he was reported absent without leave (AWOL) for a period of 5 days from 9 June 1976 to 13 June 1976. c. On 19 April 1976, the applicant accepted nonjudicial punishment (NJP) for two specifications of failure to be at appointed place of duty, and one specification of willfully disobeying a lawful order. His punishment consisted in part, reduction to private/E-1. d. Court marital charges were preferred on 10 May 1976. His DD Form 458 (Charge Sheet) indicates he was charged with one specification each of failure to be at appointed place of duty, wrongfully appropriate hand tools, which were the property of the U.S. Army, and wrongfully communicate a threat against a fellow service member. e. He consulted with legal counsel on 25 May 1976 and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). He acknowledged: * the maximum punishment if found guilty * if his request was accepted, he may be discharged under other than honorable conditions * if approved, he would be deprived of many or all Army benefits * he may be ineligible for many or all benefits administered by the Veterans Administration, and that 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 because of an under other than honorable conditions discharge f. His DA Form 4187 (Personnel Action) reflects that he was reported AWOL for a period of 5 days from 9 June 1976 to 13 June 1976. g. Consistent with the chain of command's recommendation, on 11 June 1976, the separation authority approved the applicant’s request for discharge for the good of the service with an under other than honorable conditions discharge. He would be reduced to private/E-1. h. On 22 July 1976, he was discharged from active duty under the provisions of AR 635-200, Chapter 10 with an under other than honorable conditions characterization of service. He completed 1 year and 3 days of active service and had 5 lost days, from 9 June 1976 to 13 June 1976. He was awarded or authorized an Expert Marksmanship Qualification Badge with Rifle Bar. 4. The applicant applied to the ABCMR for an upgrade to his characterization of service on 15 November 2012. The Board found that the evidence presented did not demonstrate the existence of a probable error or injustice, and his case was denied in full. 5. By regulation (AR 635-200), 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. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the Service. 6. By regulation (AR 635-200), a member who requests discharge as prescribed in chapter 10 will be given a reasonable time (not less than 72-hours) to consult with consulting counsel and to consider the wisdom of submitting such a request for discharge. Consulting counsel will advise the soldier accordingly. Commanders will insure that a Soldier will not be coerced into submitting a request for discharge for the good of the Service. 7. Army Regulation 635-8 (Separation Processing and Documents), currently in effect, prescribes the transition processing function of the military personnel system, including preparation of the DD Form 214. a. The DD Form 214 is a summary of the Soldier’s most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. b. Block 29 (Dates of Time Lost During This Period) is a verification that time lost as indicated by the Defense Finance and Accounting Service has been subtracted from “Net Active Service This Period” if lost time was not “made good.” Lost time is not creditable service for pay, retirement, or veteran’s benefits. However, the Army preserves a record (even after time is made up) to explain which service between “Date Entered Active Duty This Period” (block 12a) and ”Separation Date This Period” is creditable service. 8. 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that partial relief was warranted. Based upon all of the misconduct involved in the separation occurring on a single day and the entire chain of command through the brigade commander recommending that the applicant receive a General Discharge at the time of the processing of the separation action, the Board concluded that the characterization of service should be upgraded to Under Honorable Conditions (General). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge as Honorable. 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 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service. b. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. Army Regulation 635-8 (Separation Processing and Documents), currently in effect, prescribes the transition processing function of the military personnel system, including preparation of the DD Form 214. 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. ABCMR Record of Proceedings (cont) AR20170015575 4 1