ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  14 June 2019

	DOCKET NUMBER:  AR20180007065


APPLICANT REQUESTS:  to upgrade his bad conduct discharge to a general, under honorable conditions discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* 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 that he wants his bad conduct discharge upgraded to a general, under honorable conditions because other Soldier in his situation received general discharges. 

3.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 6 January 1969.  

	b.  On 5 February 1970, special court-martial orders were preferred against him for three specifications of absence without leave (AWOL).  The charge sheet shows the following dates:

* 21 July 1969 to 18 September 1969
* 25 September 1969 to 28 November 1969
* 17 December 1969 to 22 January 1970

c.  On 4 March 1970, the applicant requested discharge for the good of the service.  He acknowledged:
* maximum punishment
* he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* as a result of the issuance of such a discharge, he shall be deprived of many or all Army benefits
* he may be ineligible for many or all benefits administered by the Veteran’s Administration
* 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

   d.  On 16 April 1970, the chain of command submitted opposing recommendations. The separation approval authority denied his request as to grant such a request would serve no useful purpose and would not be in the best interests of insuring justice and preserving discipline in the Army.  

	e.  On 4 December 1970, he was convicted by special court-martial for six specifications of AWOL for the following dates:

* 21 July 1969 to 18 September 1969
* 25 September 1969 to 28 November 1969
* 17 December 1969 to 22 January 1970
* 20 April 1970 to 31 May 1970
* 25 June 1970 to 29 July 1970
* 10 September 1970 to 23 October 1970

   f.  On 14 January 1971, the special court-martial sentenced him to be discharged from the service with a bad conduct discharge, to be confined at hard labor for six months, to forfeit $62 pay per month for six months, and to be reduced to private/E-1.  Confinement at hard labor for six months was suspended until 14 July 1971. 

	g.  Special Court-Martial Orders Number 205, issued by Headquarters, U.S. army Training Center, Fort Lewis, WA on 21 September 1971 show the sentence had been affirmed and the provisions of Article 71c had been complied with, and the sentence would be executed. 

	h.  On 1 October 1971, he was discharged from active duty under the provisions of AR 635-204.  His DD Form 214 shows he was discharged from active duty under the provisions of Army Regulation 635-204 (Personnel Separations Dishonorable and Bad Conduct Discharges) with an under other than honorable conditions characterization of service, and he was issued a Bad Conduct Discharge Certificate.  He completed 1 year and 10 days of active service.  He accrued 428 days of lost time.  It also shows he was awarded or authorized the National Defense Service Medal.  

4.  AR 635-204 set forth the basic authority for separation of enlisted personnel with dishonorable or bad conduct discharges.  It states an enlisted person would be discharged with a bad conduct discharge pursuant only to an approved sentence of general court-martial or a special court-martial imposing a bad conduct discharge.  A DD Form 259a (Bad Conduct Discharge) will be furnished.  

5.  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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief.  Based upon the short term of service completed prior to a pattern of misconduct, including multiple lengthy AWOL offenses, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his discharge, 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.
	 
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) 635-204 (Personnel Separations Dishonorable and Bad Conduct Discharges), in effect at the time, set forth the basic authority for separation of enlisted personnel with dishonorable and bad conduct discharges.  This regulation states that an enlisted person would be discharged with a bad conduct discharge pursuant only to an approved sentence of general court-martial or a special court-martial imposing a bad conduct discharge.  

3.  AR 635-200, in effect at the time, states:  

	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.  

	c.  Paragraph 1-9f (Undesirable Discharge) states an undesirable discharge is an administrative separation from the Service under conditions other than honorable.  It may be issued for unfitness, misconduct, homosexuality, or for security reasons.  

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 the 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 solely on equity, 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 upgrade service characterization.  

ABCMR Record of Proceedings (cont)	 AR20180007065


4


1