ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  5 June 2019

	DOCKET NUMBER:  AR20170017735


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
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 when he first went AWOL it was because another Soldier had told a lie on him and he was called out and refuse to accept responsibility for someone else.  He felt the only thing left to do was leave and he realized he was young at the time and should have made better decisions.  He would like for the Board to consider and upgrade of his under other than honorable conditions discharge.

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

a.  He enlisted in the Regular Army (RA) on 3 January 1968.

b.  On 28 July 1968, he absent himself without proper authority from his unit.

c.  On 27 March 1969, he was convicted by a special court-martial for AWOL from 21 October 1968 to 13 March 1969.

d.  General Court-Martial Order Number 28, dated 17 June 1976, approved the sentence and forward the record to the Judge Advocate General of the Army for review by a Court of Military Review.

e.  Special Court- Martial Order Number 958, dated 3 April 1969, was arraigned and tried 19 February 1969.  He was found guilty of all charges.

f.  On 25 March 1976, the appellate rendered a decision that states the court having found the approved findings of guilty and the sentence 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 the sentence are affirmed.

g.  General Court-Martial Order Number 28, dated 11 June 1975, finally affirmed the sentence to bad conduct discharge, forfeiture of all pay and allowance becoming due on and after the date of the convening authority’s action, confinement to hard labor for 18 months, and reduction to the grade of E-1.  The provisions of Article 71(c) having been complied with, the sentence would be duly executed.

h.  He was discharged on 15 November 1976 under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Separations), paragraph 3-10.  His court-martial orders show he was to receive a bad conduct discharge characterization of service; however, his DD Form 214 shows he received an UOTHC.  

i.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 3 months and 11 days of active service with 492 days lost.  It also shows he was awarded the:

* National Defense Service Medal
* Sharpshooter Qualification Badge with Rifle Bar (M-14)

4.  By regulation, a member will be given a dishonorable discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief.  Based upon the short term of service completed prior to the lengthy AWOL offense, the Board concluded that the characterization of service received at the time of discharge was appropriate.


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 – Enlisted Soldiers), 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 member’s service generally has met the standards of the 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 is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

c.  Paragraph 3-7c (Under Other Than Honorable Conditions) states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service.

d.  Paragraph 3-11 (Bad Conduct Discharge) states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

e.  Paragraph 3-9 (Uncharacterized Separations) states a separation will be described as an entry level separation if processing is initiated while a member is in entry level status, except when characterization under other than honorable conditions is authorized.

3.  Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary’s Department when the Secretary considers it necessary to correct an error or remove an injustice.  With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary’s Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency.  Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department

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 form 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 the 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.  

ABCMR Record of Proceedings (cont)	 AR20170017735


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