ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    2 May 2019

	DOCKET NUMBER:  AR20170018998


APPLICANT REQUESTS:

* Upgrade of discharge from general to honorable
* Rank restored to specialist four (SP4)
* Compensation for days reported as absent without leave (AWOL)

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* DD Form 214 (Report of Separation from Active Duty)

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 a correction of the area of his discharge due to the fact he was not AWOL.  He was on his 30 day leave.  The SP4 was in the captain’s office that signed his 30 day leave that he was on when the command said he was AWOL.  He was told by the SP4 that he was getting ready to be promoted to SP4.  Why would he go AWOL?  He knew he was getting ready to be promoted.  He had scheduled his 30 day leave.  He believes the record to be in error of unjust for the following reason.  His captain didn’t recognize blacks as he did whites.  He should have never gotten a charge or an article 15 for AWOL since he was on leave.  If he was AWOL why didn’t the unit try to get in touch with him by calling his home number or the Humhold Police Department?  He thinks it was racially motivated for him to do something like that because he was a good Soldier and he made rank fast.  He was a private and made private first class living in a sergeant quarters.  He was already scheduled for leave before he found out that he was being promoted to SP4.  He wants his benefits and his rank of SP4 that he was getting ready to be promoted to and compensation for days they took from him and the pay SP4 received.  The reason he got out was because of the demotion and docking his pay along with the restrictions.  The way he was treated it was an unjust cause.  When he started he wanted to make a career.  He wanted to be a federal marshal so he joined the Army to get experience and to be able to help him to become a federal marshal.  The same way his captain demoted him and degraded him is the same way people were doing in his home town separating black people.

3.  The applicant provides his DD Form 214 showing his discharge was upgraded from Under Other Than Honorable to Under Honorable Conditions by the Army Discharge Review Board (ADRB).  It also shows he had 41 days of lost time.  He served 2 years, 5 months, and 10 days of active service.

4.  A review of the applicant’s service records shows the following:

	a.  He enlisted in the Regular Army 1 October 1974.

	b.  On 18 September 1975, he accepted non-judicial punishment (NJP) for being absent without proper authority from 2 September 1975 until 16 September 1975.  His punishment included forfeiture of pay $50.00 a month for one month, 14 days extra duty, and 5 days restriction.

	c.  On 2 February 1977, he accepted NJP for being absent without proper authority from 23 December 1976 until 18 January 1977.  His punishment included he be reduced to private/E-1 and perform extra duty for a period of 30 days.  He appealed this punishment.  His appeal was denied. 

	d.  He was also notified that his immediate commander has recommended that he be discharged pursuant to Chapter 13, Army Regulation (AR) 635-200 (Personnel Separations) for misconduct (AWOL).  He advised the applicant of his rights

	e.  On 22 March 1977, the applicant 

* acknowledged he had been advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for (misconduct) (under the provisions of chapter 13, AR 635-200 and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights
* waived consideration of his case by a board of officers and/or personal appearance before a board of officers
* elected to submit a statement in his own behalf
* understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him
* understood that, as the result of issuance of a discharge certificate under conditions other than honorable, he may be ineligible for many or all benefits as a Veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life
* understood that he may, up until the date the discharge authority directs or  approves his discharge, withdraw this waiver and request that a board of officers· hear his case

	h.  On 25 March 1977, his chain of command recommended approval "with issuance of a Discharge Certificate for reasons of misconduct." 

	i.  On 11 April 1977, the separation authority approved the applicant's discharge and ordered to issue him an under other than honorable conditions discharge under the provisions of chapter 13, AR 635-200.

	j.  The applicant was discharged under other than honorable conditions, effective     1 October 1974 in the rank/grade of private/E-1.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of chapter 14 (which replaced chapter 13 for misconduct) of AR 635-200 with an under other than honorable conditions characterization of service.  This form also shows he completed 2 years, 5 months, and 10 days of active service.  This form further shows: 

* Items 6a (Grade, Rate or Rank) and 6b (Pay Grade), PVT and E-1 
* Item 7 (Date of Rank) - 1977-02-02
* Item 21 (Time Lost) 41 days under Title 10, U.S. Code, continued in item 27 (Remarks) 2 September 1975 to 15 September 1975 and 22 December 1976 to 17 June 1977

	k.  On 16 March 1979, the applicant was notified by the Office of The Adjutant General that the Army Discharge Review Board had changed his under other than honorable conditions discharge to an under honorable conditions (general) discharge.  

	l.  Accordingly, his DD Form 214 was voided and he was issued a new DD Form 214 that shows his characterization of service as general, under honorable conditions.

5.  By regulation, enlisted Soldiers could be eliminated for unfitness (misconduct).  An individual is subject to separation under the provisions of this chapter when frequent incidents of a discreditable nature with civil or military authorities.

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.

7.  The applicant never held the grade of E-4.  He was separated in the grade of E-1 as a result of previous NJP he received on 2 February 1977 for being AWOL.  His punishment included he be reduced to private/E-1.  He held this rank at the time of separation.  The separation action did not impact his rank.
8.  For enlisted personnel, the inclusive periods of time lost to be made good under Title 10, U.S. Code, section 972, and periods of non-inclusive time after separation will be entered.  Lost time under Title 10, U.S. Code, section 972 is not creditable service for pay, retirement, or veteran’s benefits; however, the Army preserves a record of it (even after it has been made up) to explain which service between the date of entry on active duty and the date of separation is creditable service.  

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 multiple UCMJ offenses as well as a lack of character evidence presented by the applicant to show he has learned and grown from the events which led to the discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate.

Additionally, the Board also found no justification to restore the rank of the applicant or to compensate him for the time while placed in an AWOL status.  The Board concluded based upon the documentary review of the evidence presented by the applicant and found within the military service record, that no error or injustice was presented relating to those requests, therefore, that portion of the request was recommended for denial as well.

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.  (Optional as applicable.)  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 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  In pertinent part, it provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.

3.  AR 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.
4.  AR 635-200 Personnel Separations-Enlisted Personnel, in effect at the time, sets for the basic authority for separations of enlisted personnel.

	a.  Paragraph 1-9d (Honorable discharge) states 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 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) states a 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.  When a member’s service is characterized as a general, except when discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record.

	c.  Paragraph 13-5a(1) An individual is subject to separation under the provisions of this chapter when frequent incidents of a discreditable nature with civil or military authorities.

5.  AR 635-5 (Separation Documents) requires a mandatory entry for lost time during the period covered by the DD Form 214 in item 21 (or 27 or 29, depending on the version of the form).  Time lost is verified and must be subtracted from Net Active Service This Period if the lost time was not "made good."  If the ETS (expiration term of service date) was adjusted as a result of lost time and the Soldier served until ETS, the lost time was "made good."  Lost time under 10 USC 972 is not creditable service for pay, retirement, or veteran’s benefits.  However, the Army preserves a record (even after time is made up) to explain which service between date of entry on active duty and separation date is creditable service.  Time lost after ETS is non–chargeable time under 10 USC 972, but it must also be reported to ensure it is not counted in computation of total creditable service for benefits.  For enlisted Soldiers, show inclusive periods of time lost to be made good under 10 USC 972, and periods of non–chargeable time after ETS.  


ABCMR Record of Proceedings (cont)	 AR20170018998


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