ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: . BOARD DATE: 17 May 2019 DOCKET NUMBER: AR20170018225 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 did not get along with his company commander and he believes the commander did not give him a fair decision when he chose the characterization of his discharge. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 26 February 1971. b. On 12 July 1971, he accepted nonjudicial punishment for being absent without leave (AWOL) on 10 July 1971. He was fined $20 and placed on restriction for 7 days. c. Court-martial charges were preferred on 14 July 1972. His DA Form 458 (Charge Sheet) indicates he was charged with two specifications of AWOL from 8 October 1971 to 26 October 1971 and 23 December 1971 to 13 July 1972. d. He consulted with legal counsel on 17 July 1972, and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 a. (Personnel Separations – Enlisted Personnel), Chapter 10 (Discharge for the Good the Service). He acknowledged: * if his request was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate * he may ineligible for many or all benefits administered by the Veterans Administration and he may be deprived of rights and benefits as a Veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge e. Consistent with the chain of command recommendation, on 4 August 1972, the separation authority approved the applicant’s request and provided him with an Undesirable Discharge Certificate under the provisions of chapter 10, AR 635-200, Chapter 10 (Discharge for the Good of the Service). f. On 10 August 1972, he was discharged from active duty. His DD Form 214 shows he was discharged with an under other than honorable conditions characterization of service, under provisions of AR 635-200, Chapter 10 (Discharge for the Good of the Service). He completed 8 months and 13 days of active service with 271 days lost. It also shows he was awarded or authorized the: * National Defense Service Medal * Parachute Qualification Badge g. The applicant applied to the Army Discharge Review Board for an upgrade of his discharge, which was denied by the board on 2 May 1973. 4. By regulation, an individual who 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 Undesirable Discharge Certificate will normally be furnished to an individual who is discharged for the good of the service under AR 635-200, Chapter 10. 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. 1. 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 multiple AWOL offenses, to include some long in duration, as well as a lack of character evidence submitted by the applicant showing he has learned and grown from the events leading to discharage, 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 Personnel), in effect at the time, provides for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e (General Discharge) is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of this regulation provides procedures for separating individuals who committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge and may submit a request for discharge for the good of the service. An Undesirable Discharge Certificate will normally be furnished to an individual who is discharged 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 of the misconduct and the length of time since the misconduct.