ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 July 2019 DOCKET NUMBER: AR20180003862 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090006901 on 14 September 2009. 3. The applicant states he wanted to go home to see the birth of his child, but the Commander would not let him go and things went bad after that. He is trying to obtain VA benefits. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 9 January 1973. b. He accepted nonjudicial punishment on/for: * 5 April 1973, for being Absent Without Leave (AWOL), his punishment included an oral reprimand * 8 May 1973 for being derelict in the performance of his duties, his punishment included forfeiture of pay, restriction and extra duty * 26 October 1973, for disobeying a lawful order his punishment included reduction to E-1, forfeiture of pay, restriction and extra duty * * 11 November 1973, for failure to be at his appointed place of duty, his punishment included reduction to E-1, forfeiture of pay, restriction and extra duty * 8 January 1974, for assault his punishment included forfeiture of pay, restriction and extra duty * 1 February 1974, for failure to be at his appointed place of duty, his punishment included forfeiture of pay, restriction and extra duty c. The applicant’s service record is void of the complete facts and circumstances surrounding his discharge. However, on 6 February 1974, the senior commander recommended approval. d. The applicant’s DD 214 (Report of Separation from Active Duty) shows he was discharged on 30 March 1974 and issued an Under conditions Other Than Honorable Discharge Certificate, Under the Provisions of Army Regulations 635-200, Chapter 13. e. He completed 1 year, 2 months and 19 days of net active service. He has 2 days of lost time. He was awarded or authorized the National Defense Medal, Marksmanship Qualification Badge (M-16), Expert Qualification Badge (M-60/M-203) and the Hand Grenade. f. The Army Board for Military Correction denied the applicant’s previous request on 14 September 2009. 5. By regulation, action will be taken to separate an individual for unfitness when it is clearly established that rehabilitation is impracticable or he is not amenable to rehabilitation measures. 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. 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 Board found insufficient evidence of in-service mitigation 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, to include the short term of honorable service completed prior to a pattern of misconduct which resulted in the applicant’s separation, the Board concluded that the characterization of service received at the time of discharge 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. 7/18/2019 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 (AR) 635-200 Personnel Separations-Enlisted Personnel, in effect at the time, sets for the basic authority for separations 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. Where a member has served faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks, he may be furnished an honorable discharge. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). A member will not necessarily be denied an honorable discharge solely by reasons of a specific number of convictions by courts- martial or actions under Article 15 of the Uniform Code of Military Justice. It is the pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service to be awarded. 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. When a member’s service is characterized as general, except when discharged by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. c. Paragraph 13-5a (1) states an individual is subject to separation under the provisions of this chapter when one or more of the following conditions exist such as frequent incidents of a discreditable nature with civil or military authorities. 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 1. 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, 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.