ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  23 May 2019

	DOCKET NUMBER:  AR20180000899


APPLICANT REQUESTS:  an upgrade of his under 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.  A review of the applicant’s service records shows:

	a.  He enlisted in the Regular Army on 1 March 1974.

	b.  He accepted nonjudicial punishment, under Article 15 UCMJ on 14 May 1975 for being absent without leave from 5 May 1975 to 11 May 1975 and was reduced to the grade of E-2 (suspended), forfeit $48.00 for one month, and 14 days extra duty.

	c.  Court-martial charges were preferred on 14 August 1975.  He was charged with two specifications of being absent without leave from 14 June 1975 to 6 July 1975 and 25 July 1975 to 13 August 1975.

	d.  He consulted with legal counsel on 22 August 1975, and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200, (Personnel Separations – Enlisted Personnel), Chapter 10 (Discharge for the Good of the Service).  He acknowledged:

* he was guilty of the charge against him or of a lesser included offense
* he did not desire further rehabilitation or desire to perform further military service
* if his request was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* he may ineligible for many or all benefits administered by the Veterans Administration and he may be deprived of rights and benefits as a Veteran under both Federal and State laws he can expect to encounter substantial prejudice in civilian life because of the Other Than Honorable Discharge

	e.  Consistent with the chain of command’s recommendation, on 9 September 1975, the separation authority approved the applicant’s request, reduced him to E1 and issued an undesirable discharge certificate under the provisions of chapter 10, AR 635-200, Chapter 10 (Discharge for the Good of the Service).

	f.  On 24 September 1975, he was discharged from active duty.  His DD Form 214 shows he was discharged with an under other than honorable conditions characterization of service, under the provisions of AR 635-200, Chapter 10 (For the Good of the Service).  He completed 1 year, 5 months, and 5 days of active service with 50 days of lost time.  It also shows he was awarded or authorized the Expert Marksmanship Qualification Badge with Rifle Bar.

3.  By regulation, an individual who 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.  A discharge under other than honorable conditions normally is appropriate for a soldier discharged for the good of the service.

4.  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 not warranted.  Based upon the relatively short term of service prior to a pattern of misconduct, as well as a lack of character evidence submitted by the applicant showing he has learned and grown from the events leading 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 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 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 procedures for separating individuals who committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge and may submit a request for discharge for the good of the service.  An Undesirable Discharge Certificate will normally be furnished to an individual who is discharged for the good of the 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)	 AR20180000899


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