ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF: 
BOARD DATE:  29 July 2019 DOCKET NUMBER: AR20170016293

APPLICANT REQUESTS: an upgrade to his under conditions other than honorable discharge changed to uncharacterized

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)
   * Request Pertaining to Military Records 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 he would like to get an upgrade so he can receive benefits. At the time he enlisted, he was just a kid at only 17 years old and he made a lot of mistakes.

3. The applicant provides a copy of Standard Form 180 (Request Pertaining to Military Records) in which he requested a copy of his DD Form 214, benefits and a discharge upgrade.

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

   a. He enlisted in the Regular Army on 9 April 1976.

   b. DA Form 4384-R (Commander’s Report of Inquiry/Unauthorized Absence), shows the commander reported the applicant in an unauthorized absence status as of 2 February 1977 and stated that the contributing factor causing the unauthorized absence was family problems. He was dropped from rolls on 3 March 1977 and returned to military control on 9 March 1977.
   a. 

   c. His DD Form 458 (Charge Sheet), dated 3 March 1977 shows court-martial charges were preferred against him for one specification of being absent without leave (AWOL) on 2 February 1977.

   d. His record also contains a DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence), which shows he surrendered to military control at Fort Dix, NJ on 9 March 1977 and apprehension efforts were terminated.

   e. The Headquarters, Army Training Center and Fort Dix, NJ, letter, dated 31 March 1977 to the applicant, subject: Reason/Authority for Separation (Discharge in Absentia) advised the applicant that he was discharged from active duty as of 31 March 1977, for conduct triable by court-martial.

   f. According to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), he was discharged from active duty on 31 March 1977 under the provisions of AR 635-200 (Personnel Separation), Chapter 10, for the good of the service in-lieu of trial by court-martial with a character of service as under conditions other than honorable. It also shows he completed 10 months and 15 days of net active service with 35 days of lost time from 2 February 1977 to 8 March 1977.

5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations.

6. By law and AR 635-200, periods of AWOL, confinement, and desertion are considered lost time which is not creditable service for pay, retirement, or veterans' benefits. The lost time is required to be listed on the DD Form 214 even if the periods of time lost were later made up.

7. 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.

8. The Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.
1. 

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. He did not provide character witness statements or evidence of post-service achievements in support of a clemency determination. Based upon the short term of honorable service completed prior to a lengthy period of AWOL and insufficient evidence of in-service mitigating factors, 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.
8/22/2019

 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), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

   a. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. When a Soldier is discharged before ETS for a reason for which an honorable discharge is discretionary, the following considerations apply. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).

   b. 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.

   c. Chapter 10 of that regulation provides that a Soldier 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. The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment.

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
1. 

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.

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