ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 June 2019 DOCKET NUMBER: AR20180002625 APPLICANT REQUESTS: an upgrade of his under other than honorable discharge to a general or honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Self-authored letter 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 that during the time he served in the military, he believes he conducted himself in an honorable manner. He always performed his duties in an honorable manner. He also feels that the military is an honorable way of life and as such if he could do it all over again, he would do so. He was awarded a commendation citation by the installation commander upon leaving his duties at Fort Ord, CA. He made errors in judgment as his parents were both having serious health problems. While they were sick, it was his responsibility to take care of them both. He did so until they passed away around the time of his discharge. It was an honor to be in the military and it was an honor taking care of his sick parents. 3. The applicant provides a self-authored statement. He states that prior to his error in judgment and by this he means his absence without leave (AWOL), he feels that during his time in the military, he performed honorably. He stated that he performed his duties accurately and professionally. He was raised to be honest and never complained while he was in the military. 4. A review of his service records shows: a. He enlisted in the Regular Army on 2 May 1977. b. On 30 August 1977, he accepted non-judicial punishment (NJP) for being AWOL. c. On 23 October 1978, the applicant accepted NJP for failing to be at his appropriate place of duty at the prescribed time and for being AWOL. His punishment included reduction to private/E-2. d. Court Martial charges were preferred against him on 21 March 1979. His DD Form 458 (Charge Sheet) indicates that he was charged with one specification of AWOL from 14 December 1978 to 15 March 1979 e. On 23 March 1979, the applicant consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice) (the significance of his suspended sentence to a bad conduct or dishonorable discharge); of the possible effects of an Under Other Than Honorable Discharge, and of the procedures and rights available to him. Following his consult, the applicant requested to be discharged for the Good of the Service, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) chapter 10. He acknowledge that: * this request was being made of his own free will * he was afforded the opportunity to consult with appointed counsel * if accepted, his discharged may be under other than honorable conditions * no statements on his behalf are submitted * understood that if his request for discharge is accepted, he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate * understood that as a result of the issuance of an Under Other Than Honorable Discharge he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of my rights and benefits as a veteran under both Federal and State law * understood that he may expect to encounter substantial prejudice in civilian life because of an Under Other Than Honorable Discharge f. On 30 March and 2 April 1979, his immediate and intermediate commanders recommended separation with an under other than honorable discharge under the provisions of AR 635-200, chapter 10. g. On 3 May 1979, the separation authority approved separation under the provisions of AR 635-200, chapter 10-9c (Admin Discharge conduct triable by court-martial) with an under other under than honorable discharge and reduction to the lowest grade. h. He was discharged from active duty on 22 May 1979. He DD Form 214 shows he completed 1 year, 7 months, and 20 days of active duty service with 152 days of lost time. It also shows he was awarded or authorized: * Marksman-Marksman Qualification Badge (M16) * Sharpshooter- Marksmanship Qualification Badge with Hand Grenade Bar * Marksman- Marksman Qualification Badge (45 ACP) 5. By regulation, AR 635-200 states that discharges under the provisions of chapter 10 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 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 the short term of service completed prior to a pattern of misconduct, 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. 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) AR20180002625 0 4 1