ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  11 September 2019

	DOCKET NUMBER:  AR20170016384


APPLICANT REQUESTS:  upgrade his under conditions other than honorable character 
of service.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 293 (Application for the Review of Discharge from the Armed Forces of 
the United States)
*	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 he volunteered for the draft.  He wanted to go to Vietnam and 
go Airborne/Infantry.  He did not want to be a cook and that is why he messed up.

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

	a.  He enlisted in the Regular Army on 22 December 1967.

	b.  On 10 June 1970, he was convicted by a general court-martial for four 
specifications of AWOL and two specifications of being absent without leave (AWOL).  
The court sentenced him to be dishonorably discharged from the service, forfeiture of all 
pay and allowances, and to be confined at hard labor for five years. 

	c.  On 17 July 1970, the convening authority approved only so much of the sentence 
as provides for bad conduct discharge, forfeiture of all pay and allowances, confinement 
at hard labor for ten months, and reduction to the lowest enlisted grade is approved.  
The forfeitures shall apply to pay and allowances becoming due on and after the date of 
this action.  The record of trail is forwarded to the Judge Advocate General of the Army 
for review by a board of review.  Pending completion of appellate review, the accused 
will be confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas, 
or elsewhere as competent authority may direct.

	d.  On 21 August 1970, the Board of Review finds the findings of guilty and sentence 
as approved by proper authority correct in law and fact and having determined, on the 
basis of the entire record, that they should be approved, such findings of guilty and 
sentence are hereby affirmed.

	e.  General Court-Martial Order 971, dated 12 October 1970, affirmed the findings 
and ordered the sentence duly executed.

	f.  He was discharge on 2 November 1970.  His DD Form 214 (Armed Forces of the 
United States Report of Transfer or Discharge), shows he was discharged as a result of 
his general court-martial conviction, in accordance with Army Regulation 635-200 
(Personnel Separations - Enlisted Personnel), paragraph 11-lb, SPN 292, with an under 
honorable conditions discharge.  He completed 8 months and 5 days of total creditable 
active military service with 316 days of lost time.  His DD Form 214 does not show he 
was awarded or authorized any awards.  

4.  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.

5.  By law and Army Regulation 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.  

6.  By regulation AR 635-200, paragraph 1b of this regulation states that an enlisted 
person will be discharged with a bad conduct discharge pursuant only to an approved 
sentence of a general or special court-martial imposing a bad conduct discharge.

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 were 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 did not provide 
character witness statements or evidence of post-service achievements for the Board to 
consider.  Based upon the lengthy period of AWOL, as well as the failure to accept 
responsibility and show remorse for the events leading to his separation, 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.
	  
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.  AR 635-200 (Personnel Separations - Enlisted Personnel), in effect at that time, set 
forth the basic authority for separation of enlisted personnel with dishonorable and bad 
conduct discharges.  

	a.  Paragraph 11-1b, states enlisted person will be discharged with a bad conduct 
discharge pursuant only to an approved sentence of a general or special court martial 
imposing a bad conduct discharge.  

	b.  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.  Where there have been infractions of 
discipline, the extent thereof should be considered, as well as the seriousness of the 
offense(s).  

	c.  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.  When a member’s service is 
characterized as general, except when discharged because of misconduct, unfitness, 
unsuitability, homosexuality, or security, the specific basis for such separation will be 
included in the individual’s military personnel record.  

3.  AR 635-5-1 (Personnel Separations-Separation Program Designators), states that 
the separation program number (SPN) code is used in statistical accounting to 
represent the reason for separation.

4.  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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170016384

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