ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  11 July 2019

	DOCKET NUMBER:  AR20180001527


APPLICANT REQUESTS:  an upgrade to his under other than honorable discharge to an honorable discharge.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* 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 the reason he filed to separate from the Army was because he was refused payment of funds that were owed to him.  He left the Army and went home to obtain employment.  

3.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 7 March 1972.  

	b.  He received nonjudical punishment on 20 February 1973 for being absent without leave (AWOL) from 5 February 1973 to 20 February 1973.  He received a suspended reduction to private/E2.  

	c.  His DA Form 2-1 (Personnel Qualification Record) shows:  

* he was AWOL from 25 March 1973 to 27 March 1973 
* he was AWOL 16 April 1973 to 29 April 1973
* he was AWOL from 10 May 1973 to 19 September 1973

	d.  The DD Form 458 (Charge Sheet), that would have shown what court-martial charges were pending,  is not available for review with this case.  

	e.  On 25 September 1973, he consulted with legal counsel and subsequently requested discharge under the provisions of Army Regulation (AR), 635-200, (Personnel Separations – Enlisted Personnel) chapter 10, for the good of the Service.    In his request he acknowledged:  
   
* maximum punishment 
* he was guilty of the charge against him of a lesser included offense 
* he did not desire further rehabilitation or a desire to perform further military service 
* he understood 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 
* if an under other than honorable conditions discharge was issued, he would be deprived of many or all Army benefits and that he may be ineligible for benefits by the Veterans Administration (VA) and benefits of a Veteran under Federal and State law

	f.  He provided a statement on his own behalf that stated he understood he might receive an undesirable discharge.  He understood he may lose his VA benefits.  He understood he may have a hard time finding a job.  However, he still wished to apply for a chapter 10 discharge.  One of the reasons he wanted to be discharged was his girlfriend was pregnant and he wanted to be with her.  He felt he owed his life to his pregnant girlfriend and his parents who were sick.  He wanted to be with his girlfriend and his parents.  He felt if he stayed in the Army another year he would end up back in military confinement for going AWOL again.  He wanted out of the Army.  

	g.  On 5 November 1973, consistent with the chain of command recommendations, the separation authority approved the applicant’s request for discharge under the provisions of AR 635-200, chapter 10, for the good of the Service.  He would be reduced to the lowest enlisted grade and issued an undesirable discharge certificate.  

	h.  On 15 November 1973, he was discharged from active duty.  His DD 214 (Report of Separation from Active Duty) shows he was discharged in accordance with AR 635-200, chapter 10-2, for the good of the service with a characterization of service under conditions other than honorable.  It also shows he completed 1 year, 2 months, and 29 days of active service, with 163 days lost.  

4.  On 24 January 1983, the Army Discharge Review Board considered his petition for an upgrade of his discharge but found no evidence of an error or an injustice and determined that he was properly discharged, the Board denied his request.  

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 not warranted.  Based upon the short term of honorable service completed prior to multiple AWOL offenses, the Board concluded that the characterization of service received at the time of separation 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 635-200 (Personnel Separations) in effect at the time sets forth the basic authority 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 condition of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.  

	c.  Chapter 10 of the regulation provides that a Soldier 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.  The discharge request maybe submitted after the court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority.  A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service.  However, the separation authority may direct a general discharge if such is merited by the Soldier’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)	 AR20180001527


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