ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  8 July 2019

	DOCKET NUMBER:  AR20180003381


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions 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)

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 messed up and went absent without leave too many times.  

3.  A review of the applicant’s service record shows:  
	a.  He enlisted into the Regular Army on 30 July 1971.  

	c.  On 14 January 1972, he accepted nonjudicial punishment under Article 15 for being absent from his unit and disobeying a lawful order  

	d.  On 15 September 1972, court-martial charges were preferred.  His DD Form 458 (Charge Sheet) indicates he was charged with absence without leave from 11 July 1972 to 12 September 1972.

	e. On 20 September 1972, he consulted with legal counsel and subsequently requested discharge under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  In his request he acknowledged: 
 
* maximum punishment
* he was guilty of the charge against him of a lesser included offense
* he did not desire further rehabilitation or a desire to perform further military service
* he understood if his discharge was accepted he could be separated with an under other than honorable conditions discharge and furnished an under other than honorable discharge certificate
* if an under other than honorable conditions discharge was issued, he would be deprived of many or all Army benefits and that he may be ineligible for benefits by the Veterans Administration and benefits of a Veteran under Federal and State law

	f.  On 10 October 1972, consistent with the chain of command’s recommendations, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), and directed the applicant receive an under other than honorable conditions discharge, and reduction to the lowest enlisted grade.  

	g.  On 12 October 1972, he was discharged from active duty.  His DD 214 for this period of service shows he was discharged in accordance with chapter 10 of AR 635-200, separation program number (SPN) 246; discharge for the good of the service, with an under other than honorable conditions characterization of service.  He completed 11 months, and 7 days of active service, with 98 days lost time.

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 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 a lack of mitigating reasons provided by the applicant for the AWOL, the Board concluded that the characterization of service received 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.
	 
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.  AR 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 an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member'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 1-13b (General discharge) states a 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

	c.  Paragraph 10-1 (General) 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.  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 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)	 AR20180003381


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