ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 July 2019 DOCKET NUMBER: AR20180005718 APPLICANT REQUESTS: an upgrade of his other under than honorable discharge to a general, under honorable conditions. 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. The applicant states he was hurt in a “cattle truck” transport vehicle in service. He was told that he could be discharged with a general, under honorable conditions or recycled into the sick and injured unit. He chose to take the general, under honorable conditions discharge but now he is being told that he was given an under other than honorable discharge. Upon his discharge he was told that he could go back and apply to have his discharge amended to general, under honorable conditions but he never followed through. 3. A review of the applicant’s active duty service record shows the following: a. His DD Form 214 (Report of Separation from Active Duty) shows that he enlisted in the Navy on 9 September 1977 to 23 September 1977. He was discharged with an honorable character of service. b. His DD Form 214 shows that he enlisted in the Army National Guard (ARNG) on 18 August 1976 and relieved from active duty on 4 December 1976 with an honorable character of service. c. He enlisted in the Regular Army (RA) on 7 March 1978. d. . DA Form 2-1 (Personnel Qualification Record) shows that the applicant was: * AWOL on 8 May 1978 * Dropped from rolls on 7 June 1978 * Returned to military control on 18 August 1978 * AWOL on 28 August 1978 * Dropped from rolls on 31 August 1978 e. Court-Martial charges were preferred on 31 August 1978. His DD Form 458 (Charge Sheet) indicates that he was charged with two specification of absence without leave (AWOL). f. Court-Martial charges were preferred on 28 September 1978. His DD Form 458 indicates that he was charged with two specifications of AWOL. g. DD Form 2496 (Disposition Form) was completed by the applicant to request discharge for the good of the service under the provisions of chapter 10. On 29 September 1978, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and the procedures and rights available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court- martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request for discharge, he acknowledged: * He was making this request of his/her own free will and had not been subjected to any coercion whatsoever by any person * He understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * He acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits * He acknowledged he could be ineligible for many or all benefits administered by the VA and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * He stated that under no circumstances did he desire further rehabilitation or to perform further military service * He elected not to submit a statement on his own behalf h. On 6 October 1978, his immediate commander recommended separation under the provisions of AR 635-200, chapter 10. The reason for the commanders actions are the applicant is charged with two periods of AWOL totaling 122 days. i. On 12 October 1978, the separation authority approved separation under the provisions of AR 635-200, chapter 10 for the good of the service with an other than honorable conditions discharge. j. He was discharged from active duty on 19 October 1978. His DD Form 214shows he was discharged under the provisions of AR 635-200, chapter 10 with an other than honorable conditions discharge. His DD Form 214 shows he completed 7 months, and 15 days of total active duty service with 122 days of lost time. 4. The applicant’s record is void of evidence that show he applied for a discharge upgrade with the Army Discharge Review Board within 15 years of the separation. 5. By regulation, AR 635-200, chapter 10 of this regulation states a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (revised edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court- martial to which the charges may be referred. 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 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 multiple periods of lengthy 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 :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 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. 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 discharge by reason of misconduct, unfitness, and unsuitability. c. Chapter 10 of this regulation states a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. 3. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). 4. 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, 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 ABCMR Record of Proceedings (cont) AR20180005718 6 1