ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF:
BOARD DATE: 15 March 2019 DOCKET NUMBER: AR20170017787

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 Under the Provisions of Title 10, U.S. Code, Section 1552)
   * self-authored statement, dated 2 October 2017 FACTS:
1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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 was young and did not fully understand his purpose nor his obligation to serve his country. He made too many mistakes and now he has two young children who he feels ashamed to discuss his service with. He just wants them to be proud of him and to have the military flag draped over his casket. His life has been up and down but he wants to correct things now.

3. The applicant enlisted in the Regular Army on 2 February 1973.

4. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on:

* 5 September 1973, for being absent without leave (AWOL) from on or about 19 July 1973 through on or about 23 July 1973 and from on or about 1 August 1973 through on or about 9 August 1973
* 23 October 1973, for willfully disobeying a lawful order on or about 5 October 1973
* 

* 28 November 1973, for being AWOL from on or about 20 October 1973 through on or about 23 October 1973 and for making an official statement with intent to deceive on or about 7 November 1973
* 18 December 1973, for breaking restriction on or about 1 December 1973

5. Summary Court-Martial Number 9, dated 12 February 1974, shows the applicant was tried before a summary court-martial on 11 February 1974 and was convicted of being AWOL from on or about 31 January 1974 through on or about 1 February 1974.

6. The applicant’s DA Form 20 (Enlisted Qualification Record) shows he was in civil confinement from 12 February through 27 September 1974 (228 days) and from
28 September through 8 October 1974 (11 days).

7. The applicant's record does not contain his discharge notification; however, a statement from the applicant, dated 10 April 1974, confirms he was notified of the recommended separation action. Subsequently, he requested that his case be reviewed by a board of officers and that he be represented by legal counsel.

8. The applicant’s case was considered by a board of officers that convened on
26 August 1974. The board determined the applicant was unsuitable for further military service and recommended he receive an undesirable discharge.

9. The applicant was recommended for discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unfitness – frequent incidents of a discreditable nature with civil or military authorities.

10. The separation authority approved the recommended discharge under the provisions of Army Regulation 635-200, chapter 13, for unfitness, and directed the issuance of an undesirable discharge.

11. The applicant was discharged on 8 October 1974. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 and his service was characterized as UOTHC.

12. The Army Discharge Review Board reviewed the applicant's discharge and determined it was both proper and equitable. Accordingly, his request for an upgrade was denied on 3 November 1981.

13. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance.
1. 

BOARD DISCUSSION:
After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered as was published guidance for consideration of discharge upgrade requests. The Board agreed the 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.

						___________X________________
						Chairperson

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.

ADMINISTRATIVE NOTE(S):

Not Applicable


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 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 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member'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 provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

3. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. The regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds.

   a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In
   a. 

determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards 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.

   b. 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.

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