ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  1 July 2019

	DOCKET NUMBER:  AR20170016387


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions discharge

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).

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 the discharge was improper because of being misinformed of the type of discharge, by an officer handling his case.  The Army law officer advised him to take this discharge.

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

	a.  He enlisted in the Regular Army on 13 August 1974.

	b.  He accepted multiple nonjudicial punishment on/for:

* 7 January 1975, 4 February 1975, and 7 April 1975 for without authority, he absent himself from his unit.  His punishment included in part, reduction to E-1 and forfeiture of $172.00 per month for two months`
* 3 September 1975, for operate a vehicle in excess of the safe speed limit, by driving 45 mile per hours in a 35 mile per hour zone

	c.  On 9 May 1973, he consulted with legal counsel who advised him of the nature of his rights under the Uniform Code of Military Justice at the various possible stages of the proceedings including those of appeal involved in a trial by court-martial; he was fully informed of the elements of the offense with which he is charge and the facts which must be established to sustain a findings of guilt; and counsel has explained the possible defense which appear to be available against the charges at this time. Following consultation, he requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10.  In his request, he acknowledged:

* he may be discharged under other than honorable conditions and furnished an undesirable discharge certificate
* he would be deprived of many or all Army benefits and that he may be ineligible for many or all benefits administered by the Veterans Administration and benefits as a veteran under both Federal and State law

	d.  Consistent with the chain of command recommendations on 24 November 1975, the separation authority approved the applicant’s request for discharge.

	e.  On 28 November 1975, he was discharged from active duty under the provisions of AR 635-200, Chapter 10.

	f.  His DD Form 214 (Report of Separation from Active Duty), shows an under other than honorable conditions character of service for 13 August 1974 to 28 November 1975.  He completed 1year, 1 month and 3 days of active service during this period with 73 days of lost time.

4.  By regulation, discharges under the provision of AR 635-200, Chapter 10 (Discharge for the Good of the Service) are voluntary requests for discharge in lieu of trial by court-martial.

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 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 short term of honorable service completed prior to multiple AWOL offenses, 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.  AR 635-200, 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.

2.  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)	 AR20170016387


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