ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20170018206 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Disabled American (DAV) Veteran National Service Officer, dated 29 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 he would like an upgrade to an honorable discharge due to an issue with new Soldiers who stole radios, and who approached him and offered him a stolen eight track radio. The Soldiers switched them and told him that if he bought anything else that they would steal and smash them. He was AWOL [absent without leave] due to this situation. He was offered a chance to get out on a medical discharge but, he wanted to stay in the Army for fear of getting beaten back home. He stated that he had no safe haven. 3. He submitted with his application a DAV National Service Officer letter. 4. A review of the applicant’s record show: a. He enlisted in the Regular Army 6 March 1980. He was assigned to Fort Lee, VA, for training. b. On 18 June 1980, he accepted non judicial punishment (NJP) under Article 15 for being AWOL from 27 May 1980 to 29 May 1980. His punishment included forfeiture of $100 a month and 7 days of extra-duty. c. On 29 September 1980, court martial charges were preferred against the applicant for one specification of AWOL from 25 July 1980 to 22 September 1980. d. On 2 October 1980, he consulted with counsel and was advised of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice, of the possible effects of an under other than honorable conditions discharge, if this request is approved; and of the procedures and rights available to him. After consulting with legal counsel, he requested a discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He acknowledged: * maximum punishment * he was guilty of a charge against him or of a lesser included offense * he does not desire further rehabilitation or further military service * if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an under other than honorable discharge * he would be deprived of many or all Army benefits, he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life e. On 23 October 1980, consistent with the chain of command recommendations, the separation authority approved the applicant’s request for discharge for the good of the service. He would be issued an Under Other Than Honorable Conditions Discharge Certificate and reduced to the lowest enlisted grade. f. On 11 November 1980, he was discharged from active duty with an under other than honorable conditions characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 6 months and 1 day of active service with lost time: * 27 May 1980 to 28 May 1980 * 7 July 1980 to 21 July 1980 * 23 July 1980 and 25 July 198 * 21 September 1980 g. It also shows he was awarded or authorized: * Hand Grenade First Class Qualification Badge * Marksman Marksmanship Qualification Badge with Rifle Bar 5. By regulation, an individual 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. An Under Other Than Honorable Conditions Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the extremely short term of service completed prior to the lengthy AWOL offense, the Board concluded that he 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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable discharge) states that an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e (General discharge) states general discharge is a separation from the Army under honorable conditions of an individual whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of that regulation provides that an member who has committed an offense or offenses, the punishment for any which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An under than honorable discharge is normally appropriate for a member who is discharged for the good of the service. However, the discharge authority may direct an honorable or general discharge, if such are merited by the member’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 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 of the misconduct and the length of time since the misconduct ABCMR Record of Proceedings (cont) AR20170018206 3 1