ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 May 2019 DOCKET NUMBER: AR20180002580 APPLICANT REQUESTS: an upgrade of his other than honorable conditions discharge to general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record). * Personal Statement * Printout page of the Character of Discharge * DD Form 214 (Report of Separation from Active Duty) * Support letter, Ms.ZP * Support letter, Mr.MB * Support letter Ms.PM 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 served from 1972 to 1974 only leaving for 2 weeks to try to save his marriage. He returned to duty at Fort Bragg, 2/505 (2nd Battalion, 505th Infantry), talked to his commanding officer (CO), who told him he only had a few months left and not to worry, he would take care of everything. The applicant states he was led to believe the discharge would be a general discharge. He discovered the error on 10 December 2010. He thought under other than honorable was a general discharge. He found out when he tried to get Veterans Administration (VA) medical. The applicant also stated in the remarks section of DD Form 149 that according to 3.12-1 (6) if he was AWOL (absent without leave) for at least 180 days the other than honorable conditions discharge would be appropriate, he was not AWOL for that many days only 14 days. He provided a personal statement reiterating the information provided on his application. He provided three letters of support showing his age and martial stress contributed greatly to his misconduct while on active duty. 3. The applicant provides: a. Support letter from Ms. X___ applicant’s sister, Indian Land, SC. She states he joined the military at a very young age. While he was serving, he had family problems. He tried to get the military to work with him. He felt like he was not getting any cooperation from them so he made a decision that worked against him. He regrets the decision because it affects his discharge. b. Support letter from Mr. X___, Indian Land, SC. He states the applicant joined the army in 1974 and served for two years. He had martial problems and made a decision he since regrets. Mr. X___ asks for a review of the applicants discharge and let him have a general discharge. He states the applicant has attended college, has a good job, family and is a credit to his community. c. Support letter from Ms. X___, Charlotte, NC. She states three months before the applicant’s discharge a family emergency involving marital problems arose and the applicant choose to handle it without waiting for proper channels. The applicant has improved his life by getting a higher education and holding a good job. He now wishes to further improve his lifestyle by having the army change his discharge. 4. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army 9 June 1972 b. He accepted nonjudicial punishment on/for: * 7 August 1972, for being absent from place of duty on 6 August 1972 * 25 July 1973, for failing to be at his place of duty on 22 July 1973 * 12 October 1973, being absent without proper authority from 3 October 1973 to 10 October 1973 c. On 26 March 1973 the commander initiated a certificate of unsuitability for reenlistment/enlistment (bar to reenlistment against the applicant). d. He was convicted by special court martial on 27 June 1973 for being absent without authority from 21 March 1973 to 30 April 1973. The court sentenced him to reduction to pay grade E-1. e. Court martial charges were preferred on 17 January 1974. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of being absent without authority from 7 December 1973 to 10 January 1974. f. He consulted with legal counsel and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations- Enlisted a. Personnel), Chapter 10 (Discharge for the Good of the Service). He acknowledged his understanding of the following: * the maximum punishment * he was guilty of the charge against him or a lesser included offense which authorized a punitive discharge * he did not desire further rehabilitation or a desire to perform further military service * if his discharge was accepted he may be discharged under conditions other than honorable and the effects of the discharge * he would be deprived of many or all Army benefits and that he may be ineligible for many or all benefits administrated by the Veterans Administration and benefits as a veteran under both Federal and State law * he elected not to submit a statement. g. The separation authority approved the applicant’s request for discharge under the provisions of chapter 10, AR 635-200 on 13 February 1974 and ordered the applicant receive an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade of E-1. h. The applicant was discharged from active duty on 1 March 1974. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of chapter 10 of AR 635-200 with an under other than honorable conditions characterization of service. He completed 1 year, 5 months, and 24 days of active service with 88 days of lost time. It also shows he was awarded or authorized: * National Defense Service Medal * Parachute Badge * Expert Marksmanship Qualification Badge with Rifle Bar 4. By regulation, 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. An under other than honorable discharge is normally appropriate for a member who is discharged for the good of the service. 5. 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 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 a pattern of misconduct, which included multiple lengthy AWOL offenses, as well as the lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to 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. 1535874 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 3-7a (Honorable Discharge) states that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’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. Paragraph 3-7b (General Discharge) states 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 10 of that regulation provides that a member who has committed an offense or offenses, the punishment for any which, 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 is normally 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 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