ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 20 March 2019 DOCKET NUMBER: AR20170019571 APPLICANT REQUESTS: Reconsideration of his earlier request to upgrade his other than honorable conditions discharge. 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) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2004101489 on 12 August 2004. 2. The applicant states that he believes that the chapter 10 is too harsh for his situation. Being absent without leave (AWOL) to protect his children at the time was justified. He also states that his wife’s mental illness was the sole problem at the time. a. His record was spotless until one AWOL incident, his wife at the time had mental issues and he chose to be home with his four children. He feels a chapter 10 was too severe when he sees all the things you can get a general discharge for. b. He has attached no documentation, but is sure there is a record of his wife’s mental state with the local hospital’s psychiatric ward. He realizes that things were different at the time, but he thinks that a lot of people he knows did a lot worse and got a general discharge. He even knows a convicted felon who got a general discharge and is receiving Department of Veterans’ Affairs benefits. c. He personally thinks this was too severe under the circumstances . These were expressed at the time it happened but was ignored. There was no way to protect his children without being with them. He humbly asks for reconsideration of his discharge. 3. A review of the applicant’s service records shows the following: a. 11 August 1977, he enlisted in the Regular Army (RA). b. He accepted nonjudicial punishment on 7 April 1978 for failure to go at the time prescribed to his appointed place of duty. c. Court-martial charges were preferred on 13 November 1980. His DD Form 458 (Charge Sheet) indicates he was charged with being AWOL from 23 June 1979 to 5 November 1980. d. He consulted with legal counsel on 14 November 1980 and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request, he acknowledged: * the maximum punishment * he was guilty of the charge against him or of a lesser included offense which authorized a punitive discharge * he did not desire further rehabilitation or a desire to perform further military service * if his discharge was approved, he may be discharged under conditions other than honorable and the effects of the discharge * he would be deprived of many or all Army benefits and that he may be ineligible for many or all benefits administered by the Veterans Administration and benefits as a veteran under both Federal and State laws e. In connection with his request for discharge, he submitted a personal statement. He stated that he joined the Army to learn a good trade, and advance his knowledge. He went AWOL while on permanent change of station to Europe, he could see that the economy was too high for him to survive with his wife and three children. He did not want to go AWOL but would have rather done that then leave his family behind. His orders only gave him a short period of time to find housing or his tour would be changed and he would have had to be away from his family for 2 years. He had a 4-month old baby and could not stand to be away from them, he is a family man with family ways. f. Consistent with the chain of command recommendations, on 8 December 1980, the separation authority approved the applicant’s request for discharge. He would be reduced to the lowest grade and issued an Under Other Than Honorable Conditions Discharge Certificate. g. 30 January 1981, he was discharged from active duty under the provisions of AR 635-200, chapter 10. He completed 2 years, 1 month and 8 days of active service. 4. By regulation/directive: a. Discharges under the provision of AR 635-200, chapter 10 are voluntary requests for discharge in lieu of trail by court-martial. b. 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, clemency determinations. In determining whether to grant relief on the basis of 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 government acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. 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, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board agreed that the applicant's 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 to amend the decision of the ABCMR set forth in Docket Number AR2004101489 on 12 August 2004. 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. Army Regulation (AR) 635-200, Personnel Separations – Enlisted Personnel, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-13b (General discharge) states a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. The member may have had frequent nonjudicial punishments but not for serious infractions. He may be a troublemaker, but his conduct is not so bad as to require discharge for cause or discharge under less than honorable conditions. When member’s service is characterized as general, except when discharge by reason for unsuitability, misconduct, or security, the specific basis for such separation will be included in the member’s military personnel record. c. Chapter 10 of that regulation provides that a Soldier 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. The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. 2. 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 from 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170019571 5 1