ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 July 2019 DOCKET NUMBER: AR20180002830 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to general under honorable conditions or honorable. 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. The applicant states that he feels bad about not complying. He asks that someone please understand and help him. 3. A review of the applicant’s service records shows: a. He was inducted into the Army of the United States on 27 December 1967. Only a portion of his DA Form 20 (Enlisted Qualification Record) was available in his service record. b. Court-martial charges were preferred on 11 January 1971. His DD Form 458 (Charge Sheet) indicates he was charged with three specifications of being absent without leave from 1 December 1970 to 5 January 1971, from 16 November 1970 to 30 November 1970, and from 29 December 1967 to 7 August 1970. c. He consulted with legal counsel on 3 November 1970, 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: * maximum punishment * he was guilty of the charge(s) against him or of a lesser included offense * * he does not desire further rehabilitation or desire 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 may expect to encounter substantial prejudice in civilian life because of an undesirable discharge e. On 16 February 1971, consistent with the chain of command recommendations, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, AR 635-200. He directed the applicant receive an Undesirable Discharge Certificate. f. On 1 March 1971, he was discharged from active duty under the provisions of chapter 10, AR 635-200 with an under other than honorable conditions characterization of service. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 5 months and 27 days of active service, with 1000 days lost. 4. By regulation, an individual 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. An Undesirable Discharge Certificate normally is appropriate for a member who is discharged for the good of the service, in lieu of trial by court-martial. 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 reviewing the application and all supporting documents, to include the DoD guidance for consideration of discharge upgrade requests, the Board determined that relief was not warranted. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. By a preponderance of evidence and based upon the pattern of multiple AWOL offenses, including one spread over years and a lack of mitigating reasons given by the applicant for the AWOLs, the Board concluded that the characterization of service received at the time of discharge was not in error or unjust. 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. 7/10/2019 X CHAIRPERSON Signed by: 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 1-9d (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 conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of this regulation states an individual 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. An Undesirable Discharge Certificate will normally be furnished 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.