ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 July 2019 DOCKET NUMBER: AR20180003520 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: he provides a 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, 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 does not think the Board can help him, but he really wishes there was something the Board could do. If he could do it at this time, he would complete his time in the service. He does not have any evidence. He knows what he was told in 1969, but nevertheless he would have remained in the service. He served for approximately 1 year or less or more. He knows that if he had to do it all over, he would have stayed and completed his time. 3. Review of the applicant’s service record shows: a. He was inducted into the Army of the United States on 16 January 1968. He completed advanced individual training and was awarded military occupational specialty 11D (Armor Intelligence Specialist). He was promoted to pay grade E-2 on 16 May 1968. b. On 7 December 1968, he was convicted by a special court-martial of one specification of being absent without leave (AWOL) from 24 May to 19 November 1968. The court sentenced him to confinement at hard labor for 6 months, a forfeiture of $73.00 pay per month for 6 months, and a reduction to pay grade E-1. The imposing authority approved the sentence on the same date and he was reduced accordingly. c. His DD Form 458 (Charge Sheet), dated 14 January 1974, shows court-martial charges were preferred against him for one specification of being AWOL from 18 December 1968 to 21 December 1973. d. On 16 January 1974, 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 e. On 6 February 1974, after examination of the charge sheet and allied papers, the applicant’s battalion commander determined that the charge was substantiated by competent evidence and found the applicant qualified for an administrative elimination under the provisions of AR 635-200. The commander recommended approval of the applicant’s request and the issuance of an undesirable discharge. f. On 13 February 1974, the separation authority approved his request for voluntary discharge in lieu of trial by court-martial and directed the issuance of an undesirable discharge and reduction to the lowest enlisted grade (if applicable). q. Accordingly, he was discharged from active duty on 21 February 1974. His DD Form 214 (Report of Separation from Active Duty) shows he completed 7 months and 13 days of net active service and had 2008 days of time lost. His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate. The forms also does not show he was awarded/authorized any awards. 4. On 20 February 1981 and 31 March 1986, the Army Discharge Review Board determined that he was properly and equitably discharged and denied his petitions for a change in the type and nature of his discharge. 5. 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. 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 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 short term of honorable service completed prior to multiple lengthy AWOL offenses, the Board concluded that the characterization of service received at the time of separation 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. 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) AR20180003520 4 1