ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 4 April 2019 DOCKET NUMBER: AR20180001203 APPLICANT REQUESTS: The applicant requests his under honorable conditions (general) be upgraded to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * VA Statement * News Article 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 was wrongly discharged; they said he concealed his police records. He told the recruiter everything about his police record but they didn’t care. He was going to make the Army his life. He was a medic but told his recruiter he wanted to be a doctor. He realizes it was a long time ago but the discharge changed his life. He applied before but didn’t get an answer. 3. On 19 January 1973, the applicant enlisted in the Regular Army at the age of 18. 4. On 29 June 1973, he received non-judicial punishment (NJP) for being absent without leave (AWOL) from on or about 24 June 1973 to on or about 26 June 1973. 5. On 7 August 1973, he received NJP again for being AWOL from on or about 7 August 1973 to on or about 14 August 1973. 6. On 14 September 1973, a memorandum from his commander states, “It is my intention as Medical Detachment Commander to recommend you be terminated from the service on a General Discharge for Fraudulent Entry in that you did conceal your adjudication as a Juvenile Offender for a felonious offense.” 7. On 19 September 1973, an endorsement requesting action be taken to release the applicant from active duty at the earliest possible date was completed by the commander. 8. On 26 September 1973, a report of suspension of favorable personnel action was completed by the commander on the applicant, pending discharge under Army Regulation (AR) 635-200 for fraudulent enlistment. 9. On 10 October 1973, separation orders were published; they show an effective date of discharge, 12 October 1973 with under honorable conditions. 10. His record is void of a separation packet: however, his DD Form 214 shows: * Separation Date: 12 October 1973 * Total Active Service: 8 months and 14 days * Reason and Authority: Paragraph 14-5d, AR 635-200 * Type of Transfer or Discharge: Discharge * Lost Time: Approximately 10 days 11. His records show his command did not have the evidence to prefer charges against the applicant. 12. Army Regulation 635-200 does not provide for a Type Transfer or Discharge of “Discharge”. 13. Army Regulation 635-200 provides states members are separated under chapter 14 because of minor disciplinary infractions, pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. The issuance of a discharge under other than honorable conditions is normally considered appropriate; however, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 14. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 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. He did not provide character witness statements or post-service achievements for the Board to consider. Based upon the record, which includes a fraudulent enlistment, 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 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. (1) The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate. A characterization of honorable may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is delegated. (2) Paragraph 14-12b provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. d. Chapter 1, paragraph 1-18 waives the rehabilitation transfer because it would not be in the best interest of the Army as it would not produce a quality Soldier. 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. a. 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 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 governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. 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) AR20180001203 3 1