ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 July 2019 DOCKET NUMBER: AR20180007082 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation From Active Duty * Divorce Decree 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 his characterization of service is unjust because it was based on one isolated incident and served over 31 months of active service in the United States Army. He explains his poor judgement and actions were due to personal and family hardships at the time. 3. The applicant provides a divorce decree from the State of Louisiana, filed 21 November 1979 and certified as a “true copy” by the Deputy Clerk of Court in Lake Charles, LA on 23 December 2018 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 25 January 1976. b. On 21 July 1978, he accepted nonjudicial punishment, Article 15, for failure to go at the time prescribed to an appointed place of duty on three separate occasions. He received a reduction to the grade of E2 and 14 days extra duty. c. The facts and circumstances surrounding court-martial proceedings and his request for discharge under provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 (Discharge For the Good of the Service) are unavailable for the Board to review. d. Based on the available information in the applicant’s service records, on 30 August 1978, he was issued separation orders. e. On 11 September 1978, he was discharged from active duty. His DD Form 214 shows he was discharged with an under other than honorable conditions characterization of service, under the provisions of AR 635-200, Chapter 10 (Discharge For the Good of the Service - In Lieu of Court-Martial), in effect at the time. He completed 2 years, 2 months and 17 days of active service. 5. By regulation, an individual who has 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. 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. The criminal offense leading to court-martial charges are not available for review. However, based upon his request for discharge in lieu of court-martial for an offense of a criminal nature, 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. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable Discharge) is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-13b (General Discharge) states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but 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) AR20180007082 3 1