ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 July 2019 DOCKET NUMBER: AR20180003187 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * 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 provided: a. A self-authored statement that stated in summary that when he entered the Army in 1975 it was the era of the Vietnam War and he was exposed to a lot of drinking and other behaviors that led him in the wrong direction. After years of up and downs he is come to the conclusion of the route to take. He completed a substance abuse program, working part-time while on disability. His wife is also on disability, they are a family that has pulled through good and bad times, therefore he is asking for an upgrade not only for him but for his family. b. His DD Form 214 that shows his service from 26 May 1976 to 11 October 1977. 3. A review of the applicant’s service records shows the following: a. Having had prior service in the Army Reserve Delay Entry Program, he enlisted in the Regular Army on 26 May 1976. b. Four DA Form 4187 (Personnel Action), changed his duty status from: a. * present for duty to absent without leave (AWOL) on 7 February 1977 * AWOL to dropped from roll (DFR) on 9 March 1977 * DFR to attached on 29 August 1977 * confined civil authorities to present for duty on 29 August 1977 c. The DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence), which shows he was apprehended by civil authorities and returned to military authorities at Fort McPherson, GA on 27 August 1977. d. On 31 August 1977, the Federal Bureau of Investigation informed the command that the applicant had been apprehended and the bureau’s investigation has been discontinued. e. Court martial charges were preferred on 6 September 1977. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of being absent without leave from 7 February 1977 to 29 August 1977. f. The applicant underwent a medical examination on 6 September 1977 for separation and the examiner stated the he was qualified for separation. g. He consulted with legal counsel on 7 September 1977, 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: * the maximum punishment * he was guilty of the charge against him or of 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 approved, 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 administered by the Veterans Administration and benefits as a veteran under both Federal and State laws h. He submitted a statement on his own behalf that stated in part that he came in the Army on the brother – brother plan, but it did not last long. They finished boot camp and they were separated even after having the same military occupational specialty (MOS) and the same duty station. The Army wasn’t the same to him anymore. He felt the Army didn’t think about what they were doing and treated them any kind of way. i. On 26 September 1977, consistent with the chain of command recommendations, the general court martial convening authority approved the applicant’s request for a. discharge under the provisions of AR 635-200, chapter 10, for the good of the Service. He would be reduced to the lowest grade and issued an under other than honorable conditions discharge certificate. j. On 11 October 1977, he was discharged from active duty under the provisions of AR 635-200, chapter 10, for the good of the Service, in lieu of court martial. His characterization of service is under conditions other than honorable. His DD Form 214 shows he completed 9 months and 24 days of active service this period, and he had 203 days of lost time from 7 February through 28 August 1977. 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. 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, his apprehension by civilian authorities, the reason for his separation and whether to apply clemency. The Board found no in-service mitigating factors and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board concluded that the characterization of service received at the time of discharge was appropriate and 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 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 governed the separation of enlisted personnel prior to expiration term of service to meet the needs of the Service and its members. a. Paragraph 13a (Honorable discharge) 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. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. b. Paragraph 13b (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. The member may have had frequent nonjudicial punishments but not for serious infractions. He may be a troublemaker, but his conduct is not so bad as to require discharge for cause or a discharge under less than honorable conditions. When a member's service is characterized as general, except when discharged by reason of unsuitability, misconduct, homosexuality, or security, the specific basis for such separation will be included in the member's military personnel record. c. Chapter 10 of this regulation states 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. 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, 1. 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.