ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  1 July 2019

	DOCKET NUMBER:  AR20170016397


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States
* Letter from the North Carolina VA dated 12 September 2017

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 in 1977, he was home on leave and found that his mother was very sick.  She was having thyroid problems and the onset of Alzheimer’s disease.  She was in bad shape and had no one to stay with her and he did not want to her there by herself.  He felt like it fell on him to take care of her.  He is now older and see that he should have gone back once his leave ended, but his concern for his mother was important.  Since his discharge, he has never been in trouble with the law.  He asks for the Board to consider his request for a general, under honorable conditions upgrade. 

3.  The applicant provides:

* a letter from the North Carolina Veterans Affairs who filled out the DD Form 149 and DD Form 293 on behalf of the applicant.
* his DD Form 214 (Report of Separation from Active Duty)

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

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

	b.  He accepted nonjudicial punishment on/for:

* 22 June 1976, for being Absent Without Leave (AWOL), his punishment included 7 days restriction and 7 days extra duty
* 27 September 1976, for being absent from his appointed place of duty, his punishment included forfeiture of $40.00 for one month

	c.  His service record is void of the complete facts and circumstances surrounding his discharge for the Board to review.

	d.  On 3 May 1977, he consulted with legal counsel and subsequently requested discharge under the provision (UP) of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  In his request, he acknowledged:

* he was advised of the basis for the contemplated separation action under provisions of chapter 10, AR 635-200
* he was advised if his request for discharge was accepted he may be discharged under other than honorable conditions and furnished a bad conduct or dishonorable discharge certificate
* he was advised that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge
* he was advised once the request was submitted, it may be withdrawn only as provided in paragraph 10-5, AR 635-200
* he elected not to submit a statement in his own behalf
* he retained a copy of this request for discharge and of any enclosures submitted

	e.  Consistent with the chain of command recommendation, on 23 May 1977, the separation approval authority approved the applicant’s discharge request for the good of the service in lieu of court-martial with an under other than honorable discharge and his reduction to the lowest enlisted grade of E-1.

	f.  On 26 May 1977, the applicant was discharged under other than honorable conditions under the provisions of AR 635-200 chapter 10.  His DD Form 214 (Report of Separation from Active Duty) show he completed 1 year and 6 days of active service and a total 102 days of lost time.  He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

	g.  On 17 June 1981, the Army Discharge Review Board, after careful consideration of his military records and all other evidence, determined that he was properly discharged and his request was denied.

5.  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.

6.  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, the Board found the relief was warranted.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record.  The applicant was remorseful during separation procedures that also show family concerns was his reason for the misconduct.  The Board agreed an Under Honorable Conditions (General) characterization is appropriate based upon the recorded misconduct.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 26 May 1977 showing his characterization of service as under honorable conditions (General).

	 
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 Regulations 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.

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 character.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170016397


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