ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  16 July 2019

	DOCKET NUMBER:  AR20180003045


APPLICANT REQUESTS:  an upgrade of his general discharge to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States
* DD Form 149 (Application for Correction of Military Record0

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code, 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 would like to have his discharge upgraded as he was experiencing major family issues at the time.  He was awarded custody of his brother and his first wife left him.  She was eventually arrested for armed robbery in North Carolina.  He went absent without leave (AWOL) because he had to take care of his little brother and he did turn himself in.  His evaluations were always good.  He understands his being AWOL may affect the Board’s decision, but his intensions were honorable.  He was a very good Soldier before all of this occurred.  He attempted to receive assistance from his unit, but they were not very helpful.

3.  Counsel defers requests and statements to the applicant and provides no additional evidence.

4.  Review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 22 August 1972.  He completed advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was promoted to pay grade E-4 on 11 April 1974.  He served in Hawaii from 13 October 1974 to 24 August 1976. 
	b.  An undated Commander’s Inquiry memorandum shows the applicant’s company commander stated the applicant was assigned to Company C, 1st Battalion, 21st Infantry, 25th Infantry Division, on 16 October 1974 and he was reported AWOL as of 3 February 1975.  He felt that the applicant would not return to that unit.

	c.  His DD Form 458 (Charge Sheet), dated 10 April 1975, shows court-martial charges were preferred against him for one specification of being AWOL from 3 February to 24 March 1975.

	d.  On 23 April 1975, after consulting with legal counsel, he was advised of the basis of contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice.  Following this consult, he requested a discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel).  He acknowledged:

* maximum punishment
* if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* he may be deprived of many or all Army benefits
* he may be deprived of his rights and benefits as a veteran under both Federal and State law
* he may expect to encounter substantial prejudice in civilian life
* he waived his rights and elected to submit a statement in his own behalf:

		(1)  In his statement, dated 23 April 1975, the applicant stated he joined the Army in 1972, had one Article 15 in October 1972, had an outstanding service record, had been promoted ahead of his contemporaries, and received two good enlisted evaluation reports for his job performance.

		(2)  He had a serious problem with his wife and he was going to be awarded custody of his younger brother.  His wife was acquitted on 4 April of Accessory after the fact First Degree murder, which was leaving him with a serious financial burden.

		(3)  His brother, age 15, dropped out of school last year and refused to cooperate with his parents, school officials, or the police.  His parents told him that if he returned to Arizona, they would grant him custody of his brother.  He intended (if he could receive his benefits) buy a farm in Wisconsin and place his brother in school there.

		(4)  He requested consideration of his 2 1/2 years of honorable service that he contributed to his country before deciding the characterization of his discharge.  He felt his service, up until those serious family problems began to hamper his performance, was of such a nature to warrant at least a general discharge.  With a general discharge, he could return to civilian life and contribute something to his family and society.
	e.  On 23 April 1975, the applicant’s recommended approval of the applicant’s request and his immediate release from the Army.  

	f.  On 7 May 1975, the separation authority approved his request for voluntary discharge in lieu of trial by court-martial and directed the issuance of a General Discharge Certificate.

	q.  He was discharged from active duty, in pay grade E-4, on 19 May 1975, under the provisions of chapter 10, AR 635-200.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 2 years, 7 months, and 20 days of net active service and 33 days of time lost.  His service was characterized as under honorable conditions and he was issued a General Discharge Certificate.  The forms also shows he was awarded/authorized the National Defense Service Medal.

5.  The applicant’s record is void of evidence showing he petitioned the Army Discharge Review Board for an upgrade of his discharge within 15 years of his separation.

6.  By regulation (AR 635-200), an individual who has committed an offense or offenses, the punishment for which, includes an undesirable discharge, may submit a request for discharge in lieu of trial by court-martial.  

7.  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 lengthy AWOL offense which resulted in the applicant’s separation and the applicant already receiving a General Discharge, the Board concluded there was not an error or injustice which would warrant making a change to the characterization of service.

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, set forth the basic authority for the separation of enlisted personnel.  The regulation stated in:

	a.  Paragraph 3-7a (Honorable Discharge) – an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the Soldier’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.  

	b.  Paragraph 3-7b (General Discharge) – a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 10 – an individual who had committed an offense or offenses, the punishment for which included an undesirable discharge, could submit a request for discharge for the good of the service.  A discharge under other than honorable conditions normally was appropriate for a Soldier who was discharged for the good of the service; however, the separation authority could direct a General Discharge Certificate, if such was 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 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.

ABCMR Record of Proceedings (cont)	 AR20180003045


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