ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 22 July 2019 DOCKET NUMBER: AR20180005294 APPLICANT REQUESTS: an upgrade of 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 (Armed Forces of the United States Report of Transfer or Discharge) 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 would like his discharge status upgraded to be in a better standing with the government. 3. The applicant provides a self-authored statement which states he enlisted in the Army after a run-in with Georgia law enforcement. While in basic training, he obtained his General Education Degree and graduated at the top of his class at the Advanced Individual Training. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 26 May 1972. b. He accepted nonjudicial punishment, Article 15 of the Uniform Code of Military Justice (UCMJ) on 3 October 1972 for: * malingering and falsely claiming quarters when the sick slip was marked duty * being absent without leave on or about 29 September 1972 c. He accepted nonjudicial punishment, Article 15 of the UCMJ on 25 October 1972 for failure to go to an appointed place of duty at the appointed time. d. According to DD Form 458 (Charge Sheet), court-martial charges were preferred against the applicant on 20 April 1973 for being absent without leave from on or about 18 November 1972 through 17 April 1973. e. He consulted with legal counsel on 30 April 1973, he elected not to submit a statement on his own behalf and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 (Discharge for the Good of the Service), in effect at the time. He acknowledged: * if his request 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 ineligible for many or all benefits administered by the Veterans Administration and he may be deprived of rights and benefits as a Veteran under both Federal and State laws * he can expect to encounter substantial prejudice in civilian life because of the Other Than Honorable Discharge f. Consistent with the chain of command’s recommendations, on 30 May 1973, the separation authority approved the applicant’s request for separation and directed the issuance of an Undesirable Discharge Certificate. g. On 27 June 1973, he was discharged under the provisions of AR 635-200, Chapter 10 (Discharge for the Good of the Service), with an under other than honorable conditions characterization of service. h. His DD Form 214 shows he completed 8 months and 3 days of net active service with 150 days of lost time. It also shows he was awarded or authorized the: * National Defense Medal * Marksmanship Qualification Badge with Rifle Bar (Sharpshooter) 5. There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge. 6. By regulation (AR 635-200), a member who has committed an offense or offenses, which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. A discharge under other than honorable conditions normally is appropriate for a soldier discharged for the good of the service. 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 review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the short term of honorable service completed prior to a pattern of misconduct, which included a lengthy period of AWOL, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :I: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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states that 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. b. Paragraph 1-9e (General Discharge) states that 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. c. Chapter 10 of this regulation provides procedures for separating Soldiers who have committed an offense or offenses, UCMJ 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 is normally appropriate for a member who is discharged 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180005294 4 1