ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  19 June 2019

	DOCKET NUMBER:  AR20180006744


APPLICANT REQUESTS:  An upgrade of his Under Other Than Honorable Conditions Discharge to Under Honorable Conditions.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-authored letter, dated 30 December 2017
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 believes his Other Than Honorable Conditions Discharge was unjust and he will explain why.  

	a.  He served in the Army from 1977 until 1980.  He served 6 weeks in basic training at Fort Jackson, SC and completed his advanced individual training at Fort Benning, GA.  In 1977 and 1978 he was in Korea with the 2nd and the 9th Divisions.  When he returned from Korea, he was stationed in Fort Campbell, KY from 1978 until 1979.  His military occupational specialty (MOS) was 11B10 Infantryman.  

	b.  Eventually, his expiration term of service was approaching and a re-enlistment officer approach him about re-enlistment.  He had about six months remaining before he was to be discharged from the military.  The officer asked if he wanted to re-enlist for three more years.  His reply was if his MOS can be changed to something different such as finance or a desk clerk, something other than the field.  He told the officer that he did not want to go overseas being that he had already spent a year in Korea.  He requested to go to Fort Ord, CA and the officer replied that would not be a problem.  At that time, he was rescheduled to go to school in Indianapolis, IN to be trained to work as an office clerk.
	c.  Three days before his training was complete, he received orders to Germany.  He tried to talk to anyone regarding this sudden change but was unable to find anyone to listen.  Once he exhausted all efforts to find someone to listen to his problem, to no avail, he went absent without leave (AWOL).

	d.  After being AWOL for less than a year, he got tired of running and turned himself into the military authorities.  He was sent to Fort Ord, CA.  He assumed he was going to be reassigned to another company.  He was put in a holding area with other Soldiers.  After three weeks, he received a letter from the military stating he was being discharged from the military.  It was not until much later that he found out his discharge was Other Than Honorable.  He sincerely believes he was unjustly given an Other Than Honorable Conditions Discharge.  He feels the re-enlistment officer was not honest with him and did not keep his promise to keep him out of the field and allow him to remain in the states.  He sincerely regrets going AWOL, but he felt that was his only recourse.  He most humbly request to have his discharge upgraded to Honorable.

3.  The applicant provides a self-authored letter addressed above.  Also submitted was his DD Form 214 which shows he was discharged with an Under Other Than Honorable Conditions character of service on 29 April 1981.

4.  A review of the applicant’s service records shows the following:

	a.  He enlisted in the Regular Army on 31 May 1977.

	b.  He accepted non-judicial punishment on/for:

* 9 July 1977 wrongfully have in his possession 3.4 grams of marijuana
* 4 June 1979 failed to go at the time prescribed to your appointed place of duty, he was reduced to private/E-2 (suspended for 60 days)

	c.  On 7 December 1979, he reenlisted for Army service school/training center(Personnel Admin Specialist)/airborne training

	d.  His DA Form 2-1 (Personnel Qualification Record) shows he was reported AWOL on 15 May 1980 was dropped from rolls and returned 17 November 1980.

	e.  The applicant’s record is void of any separation documentation.  However, his record contains a DD Form 214 that shows he was discharged on 29 April 1981, in the rank of private/E-1, under provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) chapter 10 (in lieu of trial by a court-martial) with an Under Other Than Honorable Conditions characterization of service.  He had total active service of 3 years, 4 months, and 23 days.  He was awarded the Expert Marksmanship Badge (Rifle).

5.  By regulation (AR 635-200), chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.

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 there is insufficient evidence to grant relief.  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 record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

However, the Board did note that the applicant had a period of prior honorable service which was not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict the military service of the applicant.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous honorable active service from 31 May 1977 until 6 December 1979.”
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge.
	 
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, sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 1-13a  (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 1-13b  (General Discharge) states a general discharge is a separation from the Army under honorable conditions.  It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory.

	c.  Chapter 10 of this regulation states an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  An Undesirable Discharge Certificate will normally be furnished an individual 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.


ABCMR Record of Proceedings (cont)	 AR20180006744


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