ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 June 2019 DOCKET NUMBER: AR20170016227 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) 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. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 17 August 1976. b. On 5 July 1977, he accepted nonjudicial punishment, Article 15, for failure to go at a prescribed time to an appointed place of duty. He received a reduction to the grade of E1, forfeiture of $95 pay for one month, 14 days extra duty and 14 days of restriction. c. Based upon the information available in the applicant’s service records, the applicant was absent without leave (AWOL) on or about 8 July 1977 to 28 April 1980. d. On 28 July 1977, the Chief of Military Justice recommended that all punishment set aside because the punishment was not within the limitations of a company grade commander. The maximum forfeiture a company grade can impose upon a Private/E1 is $87. e. The applicant went AWOL from 13 February 1981 to 12 March 1981 and 24 March 1981 to 7 December 1981. He was placed in military confinement in Hartford, Connecticut on 10 December 1981. f. There is no available documentation in the applicant’s service record that shows the applicant requested separation under the provisions of AR 635-200, Chapter 10 (For the Good of the Service). g. The applicant was discharged on 22 January 1982. His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he was discharged under provisions of Army regulations 635-200, Chapter 10 with an under other than honorable conditions characterization of service. He completed 1 year, 1 month and 8 days of active service. 3. By regulation (AR 635-200), a member who has committed an offense or offenses, 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 discharged for the good of the service. 4. 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, including the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the nature of the misconduct which led to the separation being of a serious, criminal nature, 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: 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) is a separation with honor. The honorable characterization is appropriate when the quality of a 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. b. Paragraph 3-7b (General Discharge) is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of this regulation provides procedures for separating soldiers who have committed an offense or offenses, for which under 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 discharged 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 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. ABCMR Record of Proceedings (cont) AR20170016227 4 1