ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  29 May 2019

	DOCKET NUMBER:  AR20180000292


APPLICANT REQUESTS: a reconsideration to his earlier request for an upgrade to his under other than honorable conditions discharge characterization and to appear before the Board	

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Copy of The Board of Veterans Appeals decision

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 AR20100007677 on 9 September 2010.

2.  The applicant states he requests that his discharge be upgraded to honorable or at least an under honorable conditions characterization.  

3.  The applicant provides a copy of the Board of Veterans Appeals where they state that the applicant had a continuous period of honest, faithful and meritorious active service from November 1967 to May 1967 and his character of service does not constitute a bar to Veterans Administration benefits.  

4.  A view of the applicant’s service record shows the following:

	a.  He enlisted in the Regular Army on 2 November 1967.

	b.  He served overseas in Vietnam from 12 April 1968 to 10 April 1969.

	c.  On 19 January 1970, he accepted non-judicial punishment (NJP) for departing his unit in an absent without leave (AWOL) status from 13 January 1970 until 19 January 1970.  His punishment included a forfeiture of $73.00 per month for one month, 14 days extra duty and 14 days of restriction.

	d.  On 5 May 1970, he accepted NJP for failing to be at his appointed place of duty on 4 May 1970.  His punishment included 14 days of extra duty and 14 days restriction to the company area.  

	e.  Court-martial charges were preferred against the applicant on 2 June 1972.   
His DA Form (Charge Sheet) shows he was charged with one specification of departing his unit on 2 June 1970 in an AWOL status and not return to military control until 31 May 1972.

	f.  On 21 April 2019, following consultation with legal counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  In his request for discharge, he indicated:

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person
* he acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected not to submit a statement on his own behalf

	g.  His chain of command had mixed recommendations but the separation authority approved his request for discharge under the provisions of AR 635-200, chapter 10, and directed the issuance of an undesirable discharge certificate and to be reduced to the lowest enlisted grade of private (E-1).  

	h.  His DD Form 214 shows he was discharged on 21 June 1972, for the good of the service in lieu of trial by court martial with a characterization of service of under other than honorable conditions.  It also shows he completed 2 years, 7 months and 21 days of active service with lost time from 2 June 1970 to 31 May 1972.  His record also shows he was awarded or authorized the:

* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14)
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Vietnam Service Medal 
* Vietnam Campaign Medal w/DVC 60
* Combat Infantryman’s Badge
* Bronze Star Medal
* Overseas Bar x 2


5.  By regulation, applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

6.  By regulation, an individual who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.

7.  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:

The applicant's request for a personal appearance hearing was carefully considered.  In this case, the evidence of record was sufficient to render a fair and equitable decision.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

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 the lengthy AWOL offense, as well as a lack of character evidence to show the applicant has learned and grown from the misconduct which led to his discharge, 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 to amend the decision of the ABCMR set forth in Docket Number AR20100007677 on 9 September 2010.
	 
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.  Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

2.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  
   a.  Paragraph 1-9d provides that 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 of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude.

   b.  Paragraph 1-9e provides that 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 general, except when discharged 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.  Chapter 10 of that regulation provides, in pertinent part, that an individual who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.  The request for discharge may be submitted at any time after court-martial charges are preferred against him, regardless of whether the charges are referred to a court martial and regardless of the type of court-martial to which the charges may be referred.  The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court-martial convening authority.

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 (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)	 AR20180000292


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