ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 April 2019 DOCKET NUMBER: AR20180000198 APPLICANT REQUESTS: an upgrade of his other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 13 provides for an honorable or general, under honorable conditions discharge. An under other than honorable conditions discharge is a discharge issued ordinarily for misconduct, fraudulent entry, security reasons or for the good of the service. It carries a stigma and deprives the Soldier of substantially all benefits incurred during the enlistment period. This type of discharge is usually not given under chapter 13, AR 635-200. His wife’s records can be requested from the Fort Eustis military police or emergency room for the allegations of rape, assault, and attempted murder. While at Fort Eustis, he had more than just a family emergency. When he asked for emergency leave, he was told he was government issued and nothing came before the Army. Morally, he felt compelled to go support his wife’s health. 3. A review of the applicant’s service records show the following: a. The applicant enlisted in the Regular Army on 12 January 1970. b. He was convicted by summary court-martial on 15 January 1971 for being absent without leave (AWOL) from 8 June 1970 to 6 July 1970 and from 17 July 1970 to 5 January 1971. His sentence included confinement at hard labor for 30 days, suspended for 60 days. c. Court-martial charges were preferred on 19 November 1971. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of AWOL from 12 February 1971 to 13 November 1971. d. Subsequent to legal counsel, the applicant requested discharge under the provisions of chapter 10, AR 635-200. He acknowledged: * maximum punishment * he understood if his discharge was accepted he could be separated with an under other than honorable conditions discharge and furnished an Undesirable Discharge Certificate * he would be deprived of many or all Army benefits and that he may be ineligible for benefits by the VA and benefits of a Veteran under Federal and State law e. In his request for discharge, he elected to submit a statement. In his statement, he stated: * he received an Article 15 for drinking in the barracks * he received his second Article 15 for missing school * he received an Article 15 for AWOL * in June 1970, his wife pulled over and some guy tried to rape her, he sliced her throat, and that is why he went AWOL * his wife begged him to come home and he requested leave and was told no, nothing comes before the Army not even his family and he went AWOL * he was apprehended with the military police reports and psychiatric records of his wife and somehow they were lost f. Consistent with the chain of command’s recommendations, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, AR 635-200 on 13 December 1971. The applicant was reduced to the grade of E-1. He was issued an Undesirable Discharge Certificate. g. He was discharged from active duty on 13 December 1971. His DD Form 214 (Armed Forces of the United States Report or Transfer of Discharge) shows he completed 7 months and 26 days with 456 of days lost. 4. 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 Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 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 reviewing the application and all supporting documents, to include DoD guidance on liberal consideration when reviewing discharge upgrades, the Board found the relief was not warranted. Based upon the short term of service and the multiple occasions of UCMJ violations, the Board found that the characterization of service 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 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. c. Chapter 10 of this regulation provides that 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 Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. If warranted, however, the discharge authority may direct an honorable or general discharge. d. Chapter 13 of this regulation provides procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military 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. ABCMR Record of Proceedings (cont) AR20180000198 4 1