ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: . BOARD DATE: 3 July 2019 DOCKET NUMBER: AR20170016629 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 he is requesting an upgrade so he can get the proper medical attention that he cannot find. 3. A review of the applicant’s record shows: a. He enlisted in the Regular Army on 6 January 1977. b. He accepted non-judicial punishment on/for: * 31 January 1978, for failing to report to his prescribed place of duty ; his punishment consisted of reduction to E-2; Suspended for 90 days * 5 April 1978, 8 specifications for absenting his self from his place of duty: his punishment consisted of reduction to E-1 * 17 April 1978, for absenting his self from his unit also leaving his appointed place of duty; his punishment consisted of reduction to E-2 * 19 May 1978, for absenting his self from his place of duty * 29 September 1978, for failing to report to his prescribed place of duty * 2 July 1979, for failing to report to his prescribed place of duty c. On 5 May 1978 he was barred from reenlistment. d. On 14 December 1979, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of paragraph 14-42, Army Regulation 635-200(Personnel Separations – Enlisted Separations) for conviction by civil court. e. On 5 January 1980, he acknowledged receipt of the notification of the separation action and consulted with counsel. He further acknowledged: * the rights available to and the effect of waiving said rights * he may be ineligible for many or all benefits as a veteran under both Federal and State laws * he may encounter substantial prejudice in civilian life * ineligible to apply for enlistment in the United States Army for a period of 2 years after discharge. f. On 31 January 1980, consistent with the chain of command recommendation, the separation authority approved the discharge recommendation under the provisions of paragraph 14-16, section III, AR 635-200 for conviction by civil court. g. He was discharged from active duty on 6 February 1980 with an under other than honorable conditions discharge characterization of service. His DD Form 214 further shows that he was awarded or authorized: * Sharpshooter Qualification Badge M16 with Rifle Bar * 1st Class Qualification Badge with Grenade Bar 4. By regulation, members are subject to separation for conviction by civil court and other acts or patterns of misconduct. 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 a pattern of misconduct, 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. Army Regulation (AR) 635-200 Personnel Separations), in effect at the time, sets forth the basic authority for separation of enlisted personnel. a. Paragraph 1-13a (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade and general aptitude. b. Paragraph 13b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 1-13c (Under other than honorable conditions) states a discharge under other than honorable condition it is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, for homosexuality, for security reasons, or for the good of the service. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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 on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170016629 4 1