ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 April 2019 DOCKET NUMBER: AR20180000323 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) * Two Letters of Commendation * Two Certificates of Achievement * General Orders Number (GO) 334 (Army Good Conduct Medal) * 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 admits he did wrong for being absent without leave (AWOL). He did not talk to anyone about it. He liked his job and company. He sent his wife and two kids back home because he was not making enough pay to take care of them. He went to the bar with other guys and was drinking. He started missing family so he left. He has regretted it ever since. He knows he has done wrong, but he would really love to change his discharge for his family. He has worked the same job for 26 years for his family and never missed any time. He does not drink, smoke, or do drugs. He is still with the same wife of 45 years. 3. The applicant provides: a. A Certificate of Achievement, dated 30 July 1973 for excellent manner in which her performed his duties as the company commander’s driver from July 1972 to August 1973. b. A letter of commendation, dated 6 August 1973, which commended him and thanked him for his excellent manner in which he performed his duties as the commander’s driver. c. A letter of commendation, dated 25 April 1974, which commended him for his performance of duty during the period 25 April 1974 at Grafenwoehr Training Area. d. A Certificate of Achievement, dated 24 March 1975, for outstanding performance of duty while serving as the battalion commander’s driver from March 1974 to March 1975. e. GO 334, dated 4 August 1975, which awarded him the Army Good Conduct Medal for the period 6 January 1972 to 5 January 1975. 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army (RA) on 6 January 1972. b. He was discharged for immediate reenlistment on 27 March 1974. He reenlisted in the RA on 28 March 1974. c. He served in Germany from 23 May 1972 to 24 March 1975. d. Court-martial charges were preferred on 14 April 1978. His DD Form 458 (Charge Sheet) indicates he was charged with being AWOL from 4 January 1978 to 30 March 1978. He held the rank/grade of sergeant (SGT)/E-5. e. He consulted with legal counsel on 19 April 1978 and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request, he acknowledged: * 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 further military service * he understands if his discharge was accepted he could be separated with an under other than honorable conditions discharge and furnished an Under Other Than Honorable Discharge Certificate * he would be deprived of many or all Army benefits and that he may be ineligible for benefits by the Veterans Administration and benefits of a Veteran under Federal and State law f. Consistent with the chain of command recommendations on 25 May 1978, the separation authority approved the applicant’s request for discharge. He will be reduced the lowest enlisted grade and issued an Under Other Than Honorable Discharge Certificate. g. He was discharged from active on 6 June 1978. He was discharged under the provisions of AR 635-200, chapter 10. He completed 6 years, 2 months, and 5 days of active service. His DD Form 214 shows he was awarded or authorized: * National Defense Service Medal * Army Good Conduct Medal (First Award) * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) 5. By regulation, discharges under the provisions of chapter 10 of AR 635-200 provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. 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. 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 warranted. Based upon the type of misconduct which resulted in the discharge, the mitigating factors for the misconduct presented by the applicant, and the demonstrated growth from the applicant since those events leading to the discharge, the Board concluded that upgrading the characterization of service to Under Honorable Conditions (General) was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 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 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 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 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 that 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. c. Chapter 10 of this regulation provides that a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. An under other than honorable discharge certificate normally is appropriate for a member who is discharged for the good of the service. However, the discharge authority may direct an honorable or general discharge if such are merited by the member’s overall record during the current enlistment. 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. ABCMR Record of Proceedings (cont) AR20180000323 4 1