ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  23 August 2019

	DOCKET NUMBER:  AR20170016607


APPLICANT REQUESTS:  a reconsideration of his previous request for an upgrade to his under other than honorable conditions discharge to a general, under 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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC97-09604 on 29 April 1998. 

2.  The applicant states he would like to get his benefits, he was wrongly discharged.  He feels it was an unfair and unjust discharge.  

3.  The applicant’s service record is void of the separation packet and discharge proceedings (i.e. the applicant’s request for discharge for the good of the service, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), his consultation with counsel, the immediate, intermediate commander’s and the approval authority actions).  However, the previous Army Discharge Review Board (ADRB) proceedings shows the circumstances.  

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

	a.  He enlisted in the Regular Army on 20 February 1969, he was discharged honorably on 13 March 1970.  

	b.  His DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows he immediately reenlisted on 14 March 1970 and assigned to 509th Engineer Company, 20th Engineer Battalion, Vietnam on 17 November 1970.

	c.  His DA Form 20 (Enlisted Qualification Record) shows in item 44, he was absent without leave (AWOL):

* 16 June 1969 – 17 June 1969
* 27 June 1971 – 30 June 1971
* 14 July 1971 – 18 July 1971

	d.  The criminal investigation division report of investigation dated 29 June 1971, shows that he was apprehended for larceny (1/4 ton truck), and later found in possession of suspected narcotics on 26 June 1971.   

	e.  Court martial charges were preferred against the applicant on 19 July 1971, for four specifications of without proper authority fail to go at the time prescribed appointed place of duty on 13, 27 June 1971 – 1 July 1971, 14 July 1971 – 19 July 1971, one specification of wrongfully having in his possession one ounce, more or less, of habit forming narcotic drug – heroin, one specification of wrongfully communicating to his superior noncommissioned officer, a threat to take care of him, or words to that effect, one specification of without proper authority quit his post of duty, one specification of wrongfully appropriate a 1/4 ton truck, property of the Army, one specification of leaving a loaded weapon against his superior noncommissioned officer, and one specification of wrongfully and willfully discharged a firearm under circumstances such as to endanger human lives.  

	f.  The morning reports dated 20 July 1971, shows he was AWOL on 27 June, 1, 14, and 19 July 1971.  

	g.  On 16 August 1971, he was discharged from active duty under the provisions of AR 635-200, Chapter 10, in-lieu of court martial – for the good of the Service, separation program number (SPN):  246, for the good of the service, his characterization of service is under conditions other than honorable.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 2 years, 5 months and 16 days of active service with 11 days of lost time.  

5.  The ADRB, by letter, on 21 September 1977 and 5 August 1981, to the applicant in response to his request for correction of his military record.  The ADRB stated that after careful review of his application, military records and all other available evidence, the ADRB determined that he was properly and equitably discharged and denied his request to change his character and/or reason of his discharge.  

6.  The ABCMR, by letter, on 6 May 1998 informed the applicant that his request for a change to upgrade his under other than honorable discharge was denied. They advised him that he may request reconsideration only if he could present newly discovered relevant evidence that was not available to the Board when it was denied. 

7.  By regulation, discharges under the provisions of chapter 10 of AR 635-200 provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.

8.  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 offenses of a criminal nature, 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 to amend the decision of the ABCMR set forth in Docket Number AC97-09604 on 29 April 1998.
	 
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.  Army Regulation 635-200 (Personnel Separations) in effect at the time sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) states 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.  

	b.  Paragraph 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions.  When authorized, it issued to a Soldier whose military record is satisfactorily but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 10 of the 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 maybe submitted after the 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.  Soldiers separated under AR 635-200, paragraph 10, in lieu of trial by court martial are assigned the separation program number in accordance with AR 635-5-1 (Personnel Separations – Separation Program Designators).  SPN:  246 – Discharged for the good of the Service.  

3.  The RE Code associated with this separation is RE-4 which applies to persons who separated from last period of service with a nonwaivable disqualification.  (Includes persons being separated with a Department of the Army Bar to Reenlistment in effect), in accordance with AR 601-210, (Regular Army and Reserve Enlistment Program) paragraph 3-8.

4.  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.  


5.  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)	 AR20170016607


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